ABEKE ONAFOWOKAN VS THE STATE

ABEKE ONAFOWOKAN VS THE STATE

(1987) LCN/2028(SC)

In the Supreme Court of Nigeria

Thursday, July 9, 1987


Case Number: SC. 78/1986

 

JUSTICES:

ESO

ANIAGOLU

KAZEEM

KAWU

OPUTA

BETWEEN

APPELLANTS

ABEKE ONAFOWOKAN

AND

RESPONDENTS

THE STATE

RATIO

DISCUSSION ON LAW TO BE CAREFULLY EVALUATED

Any discussion of the law however erudite without a thorough and satisfactory evaluation of and decision on the facts of the cases of both the prosecution and the defence will be merely academic and will create problems for appellate courts. PER OPUTA, JSC

KAZEEM, J.S.C: (Delivering the Judgment by the Court): In this appeal, the appellant was the 1st Accused person at the trial. She and her daughter, one Adesunbo Onafowokan, who was then the 2nd Accused person, were convicted by Bakare, J. at the High Court of Lagos State for murdering one Ganiyu Sh!au the deceased on 22nd April, 1981 at Lagos. They were both sentenced to death. On an appeal against those convictions to the Court of Appeal in Lagos, the appeal of Adesunbo, the daughter, succeeded on the ground that the case against her was not proved beyond reasonable doubt, and her conviction was quashed. She was thereafter acquitted and discharged. The mother, (the present appellant) has further appealed to this court against the decision of the Court of Appeal.  It is necessary for a better understanding of the whole case to set out the facts as well as the evidence adduced at the trial by both the prosecution and the defence. The prosecution’s case was that on 21st April, 1981 the family of the Appellant was living in the same promises at 23, koseh Street, Lagos and were cotenants with one Alhaja Bintu ShIttu, P.W.1 (the mother of the deceased). On that day, there was an altercation between Amudat Shittu (P.W.3), the daughter of P.W.1 and Adesunbo, the appellant’s daughter, because she had gone to interrupt P.W.3 while she was drawing water from a tap in the compound. The altercation developed into a big fight which involved the families of both women and as a result, some of them got injured. Neighbours and other co-tenants later intervened, and the combatants retired into their respective rooms apparently still feeling aggrieved. On the following day, that is, the 22nd April, 1981, one Babatunde Shittu (P.W.2) and the deceased (both children of (P.W.1) together with their friend, one Fatal Tanimola (P.W.4) came to visit P.W.1 and found injuries all over her body. Upon enquiry, she narrated to them what happened the previous day. Thereafter, the three of them went to the apartment of the appellant, in order to inquire about the misunderstanding with a view to effecting a settlement. During discussion, another altercation ensued; and the appellant was said to have issued a threat that she would teach P.W. 1 a lesson that she would never forget At that stage, Ganiyu, the deceased, spoke and said that if the appellant should ever harm his mother in any manner, she would be punished by the State. On hearing that statement, the appellant was said to have held the deceased by the belt on his trousers. The appellant’s daughter was also said to have joined her mother In trying to drag the deceased Into their apartment, but they did not succeed. According to P.W.2’s testimony, he said: “as Ganiyu (the deceased) was coming down the steps in front of the1st accused’s (the appellant) apartment the 2nd Accused carried a frying pan containing oil from a burning stove in the corridor of her apartment and poured it on Ganiyu’s body from the neck. The oil spilled onto Fatal (P.W.4) who was standing near to Ganiyu. Ganiyu who wore a silk shirt was shouting hot oil! hot oil! when the 1st Accused (Appellant) got hold of the stove and threw it against Ganiyu.” Ganiyu’s cloth caught fire and he was in flames.” Thereafter Ganiyu the deceased died at the hospital as a result of the extensive burns he received at that time. Both Amudat (P.W.3) and Fatal (P.W.4) who said they were at the scene, testified in the same vein. Thus, the sum total of the evidence adduced by the prosecution witnesses (P. W.2,3 and 4) was that by the combined and simultaneous action of the appellant and her daughter in pouring hot oil and throwing the stove at the deceased, he received extensive burns on 22nd April, 1981 at 23, Koseh Street, Lagos from which he died.

Shortly put, the defence of the Appellant was that the deceased and a host of others came to her apartment on 22nd April, 1981 in connection with the incident of the previous day; and as they assaulted her, she held on to two of them. But the deceased managed to run away. It was neighbours who appealed to her before she released the two persons she held. She denied throwing any stove at the deceased let alone to cause the bums responsible for his death. She called another witness who corroborated her evidence in material particulars. In her own defence, Adesunbo, the daughter denied being present at the scene at the time the incident occurred. She put up an alibi that she was at her market place when she was sent for that some people were fighting with her mother, and that by the time she got home, the persons had gone away. Even though that evidence was corroborated by a witness, the alibi was not Investigated by the police. In his judgment, the learned trial Judge Bakare J. believed the evidence of both Babatunde Shittu (P.W.2) and Fatal Tanimola (P.W.4) as representing what actually happened on the 22nd April, 1981. He disbelieved the evidence of Amudat (P.W.3) as untruthful because she admitted under cross-examination that she was told what she said in Court by some one at the hospital. He also disbelieved the defence of both the appellant and her daughter and regarded their evidence as an after thought. On the alibi put up by the daughter, the learned trial Judge said: “The alibi set up by the 2nd Accused was only to make a defence to the charge. Koseh Street, and Daddy Alaja Street are in the same vicinity and the witness to the 2nd Accused could have been invited to the scene after the incident.” In the result, the learned trial Judge convicted the appellant and her daughter and sentenced both of them to death. An appeal was lodged against that decision to the Court of Appeal in Lagos. At the Court of Appeal, Ademola J.C.A. who delivered the lead judgment found that Babatunde Shittu (P.W.2) did not say in his Extra-judicial statement – Exh.G – which he made on the day of the incident, that the 2nd Accused was at the scene of the incident, let alone pour hot oil on the body of the deceased. Even though P.W.2 in his explanation, attributed the omission of 2nd Accused’s name in Exh.G to the fact that he was so worried by the event that he was not himself when he wrote the statement, his evidence was regarded as unreliable by the Appellate Judge. Consideration was also given to the fact that the Investigating Police Officer (P.W.7) said that he relied on the extra-judicial statement of Amudat Shittu (P.W.3), a witness who was disbelieved by the trial Judge as untruthful, before he arrested the 2nd Accused. Finally, reference was made to the defence of alibi put up by the 2nd Accused which was never investigated by the police and which the learned trial Judge did not fully consider in his judgment; and in conclusion, the learned appellate Judge held that it would be unsafe to convict the 2nd Accused on the evidence adduced against her. Consequently, the appeal of the 2nd Accused was allowed; her conviction was set aside; and she was acquitted and discharged. The Court of Appeal confirmed the conviction of the Appellant. By setting aside the conviction of the 2nd Accused, the Court of Appeal had in effect regarded the evidence of P.W.2 as unreliable and as such it found it unsafe to convict not only on the evidence of P.W.2, but also on that aspect of the evidence of P.W.4 which incriminated the 2nd Accused. No appeal was lodged by the prosecution against the acquittal of the 2nd Accused; but a further appeal was lodged by the appellant against her conviction to this Court on several grounds which I consider unnecessary to set down here. However, the main question for determination emanating from those grounds is: Having disregarded the evidence of P.W.2, will it be safe to rely on the evidence of P.W.4 and that portion of the evidence of P.W.2 incriminating the appellant, in convicting her? It must of course be noted that both of them unequivocally testified that the 2nd Accused was not only present at the scene and poured hot oil on the deceased; but that her mother -the appellant – also simuitanously threw a buming stove at the deceased. Evidence however showed that the 2nd Accused was elsewhere at that material time. It is a cardinal principle of our criminal law that in all cases, the burden of proving that any person has been guilty of a crime or wrongful act, subject to certain exceptions (which are not applicable here,), is on the prosecution; And If the commission of a crime is directly in issue in any civil or criminal proceedings, it must be proved beyond reasonable doubt. See Section 137(1) of the Evidence Law of Lagos State Cap 39 of laws of Lagos State. Thus in a Privy Council case of R v Basil Ranger Lawrence (1932) 11 N.L.R. 6, Lord Atkin at p.7 observed that “it has to be remembered that it is an essential principle of our Criminal law that a criminal charge has got to be established by the prosecution beyond reasonable doubt.” Three years later in Woolmington v. D.P.P. (1935) A.C. 426 at p.481 Lord Sankey L.C. said that:”

If at the end of and on the whole case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with malicious intentions, the prosecution has not made out the case and the prisoner is entitled to an acquittal.” See also Okogbue v Commissioner of Police (1965) N.M.L.R. 232 where this Court held that ‘the burden of proving the accused guilty rests throughout on the prosecution.”In that case, the court found that the prosecution failed to prove its case beyond reasonable doubt; and the appeal was allowed. In the instant case, the evidence of P.W.2 had been impugned as unreliable by the Court of Appeal which found it unsafe to confirm the conviction of the 2nd Accused on that evidence. It was the same witness who testified that the appellant acted simultaneously with the 2nd Accused in causing the deceased’s death. If it was not proved that the 2nd Accused was present at the scene of the incident, would it also be safe to rely on her evidence in convincting the appellant? The Court of Appeal had disregarded her evidence against the 2nd accused and that decision had not been challenged in this appeal. In the circumstances I am also of the view that it will be unsafe to rely on the evidence of P.W.2 in convicting the appellant. That leaves for consideration the evidence of P.W.4 against the appellant. The main theme of P.W.4’s evidence was that he saw the appellant at 23, Koseh Street, Lagos in the evening of 22nd April, 1981, and that she threw a burning stove at the deceased who had been soaked with hot oil by her daughter (the 2nd Accused). It was as a result of that combined action that the deceased ultimately died; and although the appellant did not deny being at the scene, she however denied throwing any hot stove at the deceased. Hence, the trial court was left to consider whether or not to believe the evidence of P.W.4 alone against the denial of the appellant. If the 2nd Accused was not at the scene of the incident to pour the hot oil on the deceased, would it be safe to accept the testimony of P.W.4 that he saw the appellant simultaneously throwing the hot stove on the deceased? It should be remembered that the law requires the guilt of an accused person to be proved beyond reasonable doubt; and that if there is any lingering doubt, the accused person must be given the benefit of that doubt. Having regard to the circumstances of this case, I am inclined to accept the submission of learned counsel for the appellant that the evidence of P.W.4 has raised a doubt that he saw the appellant throwing a hot stove at the deceased when it was proved that the 2nd Accused whom he said was there at the time was elsewhere at that material time. If there is a doubt, the appellant ought to be given the benefit of that doubt. In the result, 1 will allow the appeal, set aside the appellant’s conviction; and order her discharge and acquittal.

ESO, J.S.C.: I have had a preview of the judgment just delivered by my learned brother Kazeem, J.S.C. and I am in full agreement that the appeal be allowed. I also agree with all the orders.

ANIAGOLU, J.S.C.: There is no question that the Appellant, Abeke Onofowokan, was there at the scene. Indeed, she did not herself plead alibi. The tenor of her statement to the police made on 18th May, 1981 (See pages 16 to 18 of the Record) clearly implies that she was there. At page 17, she had this to say “On the following day which was 22/4/81 at about 6.30 p.m. I was with my sick daughter by name Idowu in the house when the deceased and eight other persons whose names I do not know, came inside our room. Immediately they entered the house, they said to me “Today is today” and they demanded to know the whereabouts of the rest people in the house. Then I asked them the people they were asking looking (sic) for and what happened. Immediately they slapped me twice and started beating me. I shouted help but nobody came as I was unable to hold any of them. During this time Adesunbo who went to the market was not yet returned. At a state (sic) these people wanted to rush outside but I was able to hold two of them. So seven of them ran outside including the deceased ran outside. As I held fast to the two people inside the “house,” I was still shouting for help. As I was shouting one small boy by (sic) Tunde ran to the market to call Adesunbo. Later Adesunbo came from the market with three other women. But before Adesunbo with three women came from the market Alhaji Kari (f) came and asked me to leave the two people but I refused. When Adesunbo with those three women who followed her from the market came, they met me with Alhaji Karl with the two people inside our parlour. Later when Alhaja Karl (f) Still insisted that I should leave the two people, I left them.” Having settled the issue of her presence, the next thing Is to evaluate the evidence of PW.4 on whether or not the Appellant took part in pouring oil and fire on the deceased. It is here that we encounter the problem. Having stated that the appellant’s daughter was there at the scene when in fact the evidence disclosed that she was at the market, and having stated that she took part in pouring the hot oil and fire, the issue of his veracity comes into serious question. Can such a witness be believed in respect of his story as to what happened? Having told a lie – for a lie it must be – about the presence of the daughter, can his Story be relied upon for making a finding against the mother? One is inclined to hold that his evidence left, and in the face of the denial of the woman that she poured anything upon the deceased, would it not be safer to give benefit of the doubt to the Appellant, finding her not guilty on the charge and acquitting and discharging her? Even though the effect would be that none of the two accused – the daughter and the mother – will be found guilty in respect of the death of that man, the laws of all civilized nations maintain that it is better that the guilty persons should go scot-free than that one innocent person should be found guilty. I have had a preview, in draft, of the judgment just delivered by my learned brother, Kazeem J.S.C., and I agree with it. Accordingly, I would allow the appeal, set aside the conviction of the Appellant and discharge and acquit her on the charge.

KAWU, J.S.C.: I have had the advantage of reading in draft, the judgment of my learned brother, Kazeem, J.S.C. which has just been delivered, and I entirely agree with his reasoning and conclusions. I am also of the views that this appeal ought to be allowed. The appellant was the1st accused in a murder case in the High Court of Lagos State, and her Daughter – one Adesunbo Onafowokan, was the 2nd accused. They were both convicted of the murder of one Ganiyu Shittu on 22nd April, 1981. It is plain that in arriving at its decision, the trial court relied largely on the testimony of P.W.2 and RWA who claimed to be eye-witnesses to the incident and who swore that it was the combined and simultaneous action of the appellant and daughter (2nd accused) that caused the Death of Ganiyu Shittu. On appeal to the court of Appeal, the appeal of the 2nd accused was allowed on the ground that the testimony of P. W. 2 relating to her presence at the scene of the incident was unreliable. It was also the view of the court that her plea of alibi, which was corroborated by a witness, was not properly considered, and that If it was, the trial court would have come to the conclusion that the charge had not been proved against her beyond reasonable doubt. She was accordingly acquitted and discharged. However, the conviction of the appellant was confirmed. Now, having rejected the evidence of PW2, the only evidence left on which the Court of Appeal based the appellant’s conviction was that of P. W.4. But in the circumstances of this case, is it safe to base her conviction on that evidence? If the evidence of P.W.2 relating to the presence of the 2nd accused at the scene of the incident was rejected by the Court of Appeal, the implication of the rejection of the evidence, in my view, is that 2nd accused was elsewhere at the relevant time, and not at the scene of the incident. If she was not at the Scene of the incident, P.W.4 must be lying when he testified that he saw the appellant and the 2nd accused at the scene of the incident simultaneously launching an attack on the deceased. In my view the evidence of P.W.4 should not have been relied upon by the Court of Appeal in confirming the conviction of the appellant. P.W.4’s testimony is not free from doubt, and in the circumstances, it cannot be said that the case has been proved against the appellant beyond reasonable doubt. It is for the above reasons and the fuller reasons in the lead judgment of my learned brother, Kazeem, J.S.C. that I too will allow this appeal. The appeal Is accordingly allowed and the decisions of the lower courts set aside. The appellant is acquitted and discharged.

OPUTA, J.S.C.: I have had the privilege of a preview of the lead judgment just delivered by my learned brother Kazeem, J.S.C. and I am in complete agreement with him that this appeal ought be allowed. This case raises some disturbing questions about the efficacy and thoroughness of Investigations into serious offences like murder and the lack of proper approach by our Court towards questions of fact and issues of fact arising therefrom, and the necessity to make appropriate findings on each specific issues instead of the generalized and over-worked cliche – “I believe the prosecution witnesses, I do not believe the accused persons and their witness.” With proper findings on all the Issues of fact “belief” or “disbelief” may be natural and logical conclusion but stating that conclusion without also stating how it was arrived at will detract substantially from that conclusion. This is another way of saying that there Is no magic in the expression “I believe” or “I do not believe.” My comments in this appeal will be confined to:- (i) the effect of the failure to investigate the alibi of the 2nd accused; (ii) The effect of the Court of Appeal’s holding that the evidence of P.W. 2 was unreliable. The facts of this case are fairly straight-forward and are by no means complicated. The only difficulty arose from the rather casual manner in which the investigation was conducted and the equally casual manner In which the learned trial Judge approached those facts as well as the paucity of his definite and speck findings of fact. I have observed in our trial courts a propensity to enter in a detailed discussion of the law without first of all settling all the debts they owe to the facts. It is on the facts as properly received, accurately evaluated and definitely and specifically found that the law will apply. Any discussion of the law however erudite without a thorough and satisfactory evaluation of and decision on the facts of the cases of both the prosecution and the defence will be merely academic and will create problems for appellate courts. I made the same point in Isaac Stephen v. The State (1986) 5 N.W.L.R. (Part 46) 974 at p. 1005 where 1 proferred what I considered to be “a proper and scientific approach to the difficult problem of writing a judgment.” The case for the prosecution gathered from the evidence of their witnesses was that on the night of 21/4/81 there was a fight between Amudat Shittu called as P.W.3 and Adesumbo Onafowokan (later on charged as 2nd accused in the trial Court). The mother of Adesunbo Onofowokan, Abeke Onofowokan (later charged as1st accused) and her father were present during this fight. On hearing of this fight, the mother of Amudat Shittu, Alhaja Bintu Shittu called as P.W.I rushed to the scene. When she arrived (in her own words) “no fight was in progress.” Alhaja Bintu Shittu (P.W.1) then ordered her daughter (P.W.3) to go inside their room. There upon the father of Adesunbo Onafowokan (2nd accused) and husband of Abeke (1st accused) pushed her a second time. She fell and sustained injuries to her back, right leg and right thumb. On the following day the children of Alhaja Bintu namely Babatunde Shittu called as P.W.2 and Ganiyu (no deceased) along with a friend of Ganiyu Fatal Tanimola called As P.W.4 called on her. On noticing that their mother’s “forehead and right thumb was in bandage” the P.W.2 inquired to know what happened. Hearing of the fight of 21/4/81 and the behaviour of the father of Adesunbo (2nd accused) P.W.2, his brother Ganiyu and Ganiyu’s Friend, P.W. 4 proceeded ‘to the apartment of the accused persons”. In the words of P.W.2:- “I met the1st accused standing in front of her apartment. The 2nd accused came from inside the apartment to join the mother’ () After exchanging greeting P.W. 2 stressed that he had come “to settle the misunderstanding between her family and mine”. The P.W. 2 then requested that in future if their mother did anything wrong the 1st accused should please report to them – “her grown up children.” At this stage the1st accused asked the P.W. 2 to stop adding that “my mother – P.W.1) – had not seen enough. She said she was going to do something to her which she would never forget.” There-upon Ganiyu (P.W.2’s younger brother) suggested to P.W. 2 that they should leave adding that “if the 1st accused carried out her threat and killed our mother the Government would retaliate.”  What happened next is crucial. I will therefore reproduce what the eye witnesses said. The P.W.2, Babatunde Shittu continued at p.28 of the record of proceedings:- “The 1st accused went to Ganiyu and held him by his trousers belt and to his waist and told him to come and revenge for his mother…. Ganiyu struggled to free himself …. As Ganiyu was coming down the steps in front of the 1st accused’s apartment the 2nd accused carried a frying pan containing oil from a burning stove in the corridor of her apartment and poured it on Ganiyu’s body from the back. The oil spilled onto Fatal (P.W.4) who was standing near to Ganiyu. Ganiyu who wore a silk shirt was shouting hot oil! hot oil! when the 1st accused got hold of the stove and threw it against Ganryu. Ganiyu’s cloth caught fire and he was in flames… Ganiyu was conveyed in a vehicle to Adeniji Street Police Station and from there to the General Hospital Lagos where he was admitted for treatment. He died the following morning…..” (the Italics is mine to emphasise the fact that the prosecution’s Case is that1st and 2nd accused did what they did simultaneously). “The above is the ipsissima verbs of the P.W.2 of the events leading up to the death of Ganiyu. The next supposed eye witness account was given by Fatal Tanimola, P.W. 4 at p. 36 of the record:- … Tunde led and Ganiyu and I followed. … The accused were present. Ganiyu and I stood at the balcony. P.W.2 told the 1st accused that he came to inquire what caused the misunderstanding between his mother and the family of the accused. The 1st accused said P.W. 1 has not seen enough and that she was not going to forget what she was going to do to her. At that stage, Ganiyu spoke and said that whatever harm the 1st accused did to his mother would be punished by the State. On hearing this the 1st accused came out and held Ganiyu tightly on his belt to his trousers. Ganiyu struggled to free himself. 2nd accused joined the mother in trying to drag Ganiyu into their room. They did not succeed. The 2nd accused left Ganiyu and the next I saw was that she poured hot oil from a sauce pan on Ganiyu. The hot oil spilled on my right leg also. The oil came from the top of a burning stove in the corridor of the accused persons. Next the 1st accused picked the burning stove and threw it at Ganlyu. Ganiyu was set on fire and ran out of the house…. On 23/4/81 Ganiyu died …” () I have on purpose set out in detail the evidence of P.W.2 and P.W.4 as they were the key witnesses for the prosecution and all the grounds of appeal deal directly or indirectly with their evidence. If these two witnesses can be believed and are in fact believed the prosecution will succeed but not otherwise. The prosecution called a total of 7 witnesses. The 1st accused gave evidence and called one witness, Kurimatu Abina. The evidence of the1st accused was in substance that Ganiyu (the deceased) on the 22/4/81, the fateful and fatal day, came with “some persons” into her parlour. Ganiyu said “This is the person”. The people about eight in number “began to beat me.” I held two of them. She held onto these two till one Alhaja Karimatu and the 2nd accused and three of the traders came in.” The 1st accused admitted owning the stove, EX. C but denied owning the saucepan or frying pan, EX.B. The defence of the 2nd accused was an alibi. She called Alake Abiosun, a fellow trader who “sell at No. 51 Koseh Street, Lagos” also known as Daddy Alhaja (p.72). It is note worthy that the Onofowakans lived at No. 23 Koseh Street Lagos (p.75) the same address where the Shittus live (p.24). The alibi of the second accused was not investigated. What was even worse is that her Evidence of that alibi was not challenged by cross-examination.  At the end of the trial, Bakare, J. found both accused persons guilty of the murder of Ganiyu Shittu. The two accused persons then appealed to the Court of Appeal Lagos Division Coram Ademola, Nnaemeka-Agu and Kutigi, J.J.C.A. Ademola, J.C.A. in a lead judgment allowed the appeal of the 2nd accused, Adesunbo Onafowokan but dismissed the appeal of her mother, Abeke Onafowokan who was the1st accused in the trial Court. The lead judgment of the Court of Appeal having discounted the evidence of the P.W. 2 very carefully and meticulously, reviewed the evidence of the P.W. 4 at pp. 163/164 and ended on this note:-() “In the face of all these, it will be too much to expect the learned trial Judge to believe her (Abeke Onofowokan’s evidence) that she had no part to play in the incident that led to the burns of the deceased person. The learned trial Judge did not give her credence and I cannot either” In other words the Court of Appeal had no quarrel with the fact that the trial believed the P.W. 4 and disbelieved the list accused, Abake Onafowokan. Nnaemeka-Agu, J.C.A. was of the view that if EX. G was to be used to contradict the evidence of P.W.2, the provisions of Section 198 and 208 of the Evidence Act should have been complied with. This was not done. I am in complete agreement with the learned Justice of the court of Appeal that failure to do this detracted considerably from any suggestion that P.W. 2 was an unreliable witness. Nnaemeka-Agu, J.C.A. was right when he concluded at p.166 of the record:- “I do not therefore think I should regard him (P.W.2) as an unreliable witness in view of this serious procedural error. For this reason also, I would not regard the evidence of P.W 2 as unreliable, an epithet which would have had the effect of having his evidence disregarded altogether”() The learned Justice of Appeal at p.168:- “But there is that lingering feeling that the evidence of P.W. as it relates to the 2nd appellant might be true or could have been wrong. Combined with what was said in the lead judgment of his defence of alibi and the way she was brought into the case It would be unsafe to convict the 2nd appellant in ft. She is entitled to an acquittal. But there is no such feeling nor a similar defence of alibi in relation to 1st appellant. I therefore dismiss the appeal of the1st appellant…….” (). Kutigi, J.C.A. could not easily get himself reconciled with the conclusion in the lead judgment but he still held:-

“I must confess that although I agree with his conclusions this has been under considerable difficulties on my part.” It is against the above judgment of the Court of Appeal, Lagos Division that the present Appellant Abeke Onofowokan has now appealed to the Supreme Court of Nigeria. Ground 1 of the Grounds of Appeal complains that:- “(1)The Court of Appeal erred in law in dismissing the Defendant’s appeal because no onus lies on her to prove or disprove any fact and that it sufficient for her acquittal ff the case against her has not been proved by the prosecution beyond reasonable doubt as laid down by law.” I had recently in Bakare v. The State (1987) 1 N.W.L.R. (Part 52) 579 at pp. 587/588 dealt with the meaning and the Extent of the concept of proof beyond reasonable doubt. I there emphasised that absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt will therefore not admit of plausible or fanciful possibilities and use these to defeat the end of justice. It merely admits of a high degree of cogency consistent with equally high degree of probability. I have earlier on in this judgment set out verbatim the relevant evidence of the P.W. 2 and P.W. 4. These two witnesses testified that it was the Appellant who “threw the burning stove at Ganiyu” and “Ganiyu was set on fire.” Ganiyu in less than twelve hours after this incident died according to the medical evidence of Dr. Adebayo Doherty called as P.W. 5 “of extensive burns consistent with burns from naked flames or very hot substance’. The prosecution witnesses were all; believed by the Trial Court. The issue now – was there enough evidence to justify that belief? I concede that an appellate Court which is even minded to find otherwise on the same evidence if it were the trial court should not on that score set aside the verdict of the Court of trial but that is so if and only if the evidence relied upon by the trial Court that supports such verdict is credible. The emphasis is on not just evidence but on credible evidence. As far as the case against the Appellant is concerned, the two courts below have made “concurrent findings” that it was the Appellant who threw the burning stove at Ganiyu and set him on fire (at the same time the 2nd accused poured hot oil on him). This is the sum total of the evidence of at least P.W.4 who was believed by both Courts. This raises the questions of:- (i) the quatum of proof required to prove a case beyond reasonable doubt; and (ii) the nature and quality of such evidence. The short answer to the quantum of Evidence required is that the Court can act on the evidence of one single witness if that witness can be believed given all the surrounding circumstances. Truth is not discovered by a majority vote. One solitary credible witness can establish a case beyond reasonable doubt. But if the evidence of that solitary witness is either incredible (see case of Frank Rice (1972) 20 Cr. App. R. 21), or doubtful given all the surrounding circumstances then the appellate Court should hold either that the case was not proved beyond reasonable doubt or that it will be quite unsafe to convict on that evidence and either way the appeal should be allowed. It is legally correct that no onus of proof lies on the Appellant – this however should be interpreted to mean that the primary onus of establishing the case or the guilt of the accused is always on the prosecution except in very special and limited circumstances like cases of insanity where the law presumes him same and casts on him the onus of establishing the contrary: Woolmington v. D.P.P. (1935) 25 CR. app. R. 72 at p. 95. but when the prosecution has made out a prima facie case which if unanswered will lead to his conviction then the duty of adducing such evidence as would make the jury find any issue in his favour is definitely on the accused. In this case on appeal the Court of first instance did not believe the Appellant when she said that she did not know what happened to Ganiyu The Court of Appeal went further and emphasised that from the totality of the evidence “it will be too much to except the learned trial Judge to believe her evidence that she had no part to play in the incident that led to the bums on the deceased person. The learned trial Judge did not give her credence and I cannot either.” The above was quoted in the Particulars of Ground 1 and the imputation was that the court of Appeal thereby cast the onus on the Appellant. The primary onus – no, but secondary onus of adducing some evidence to enable the Court find in her favour definitely yes see R. v. Lobell (1957) 41 CR. App. R. 100 at p. 104. This seems to be the intendment of Section 134(1) and (2) of our Evidence Act Cap 62 of 1958. The net result is that if at the dose of the prosecutions case the Appellant said nothing, she would be found guilty. If she testified and her evidence was disbelieved, she would again be found guilty. She did testify but the trial court rejected her defence “ as an after-thought.” The main question for this Court is whether or not the trial Court and the court below were right in relying solely on the Evidence of P.W.4 having described the evidence of P.W. 2 as unreliable. This is the substance of Ground 2 in this appeal. The 2nd Ground of Appeal complains that:- “(2)Having held that the evidence of P.W. 2 was unreliable for the reasons set out in the judgment of the Court of Appeal and having also held that the 2nd Appellant was not guilty, in the evidence led by the P.W. 2 and P.W. 4 there is no other evidence which connected the Defendant with the charge in the circumstances, the Court of Appeal erred in law in dismissing her appeal as the only conclusion to which the Court could have come Is that the charge was not proved and should have therefore acquitted and discharged the Defendant.” The two eye witnesses called by the prosecution were P.W.2 and P.W.4. Both stated unequivocally and categorically that the two accused persons, mother and daughter, Abeke Onofowokan and Adesunbo Onafowokan were present at the Scene of crime – No 23 Koseh Street, Lagos on 22nd April 1981 at the hour of 6 p.m. to 7 p.m. Both stated that the mother and daughter simultaneously (the D.P.P. used the expression jointly) “took part in the attack on Ganiyu which causes his death” .Both described, in similar and identical terms, what each did in pursuance of and during that attack the 2nd accused (daughter) threw a saucepan of boiling oil on Ganiyu while the 1st accused (the mother) threw the burning stove on Ganiyu. The result of this combined attack on Ganiyu produced his death. Like a marble sculpture of a Madonna and child where one cannot possibly separate the child from the mother without destroying the entire sculpture so it is with the Ev1dence of P.W.2 and P.W. 4. They both have to be believed together or disbelieved together. The question will then arise – But why? the answer is that If one is disbelieved on any material point the other who gave positive evidence on that same point would have lied on that point. Now whether the daughter (the 2nd accused) was present and took an active part (as alleged by P.W.2 and P.W.4) in the assult resulting to the death of Ganiyu was a most essential point not only as far as the verdict against the 2nd accused was concerned but also as far as the verdict against the 2nd accused was concerned but also as far as the veracity of the witnesses (P.W. 2 and P.W.4) was concerned. Or this point (whether the 2nd accused, the daughter, was present) at the earliest opportunity on 27/4/81, she (2nd accused) made a statement to the Police tendered as EX. F. (copied at pp. 97 to 98 of the record of proceedings). In Ex. F the 2nd accused pleaded an alibi, mentioned where she was at the material time i.e 6 p.m. to 7. p.m. of 22/.4/81, (in Daddy Alaja market): mentioned those who were with her at that very material time as Mama Kekere, lya San! and lye Kekere and mentioned that she was sent for by 1st accused, her mother and when she got home she did not see Ganiyu in their apartment. She gave evidence of the alibi and called Alake Abiosun as D.W. 1. The Statement of D.W.1was tendered at the request of the prosecution as EX. H. Exhibits F and H confirmed and corroborated the oral Evidence of the 2nd accused and D.W.1. It is a pity that the trial court did not make any specific finding on the alibi set up by the 2nd accused, an alibi which she proved by oral evidence and by the testimony of D.W.1 even though there was no burden on her to prove same: R. v. Johnson (1961) 1 W.LR. 1478: 46 CR. App. R. 55; see Also R. v. Modem & Anor. (1947) 12 W.A.C.A. 224. Evidence of alibi by an accused person cannot be easily brushed aside except it be neutralised by greater and more convincing contrary evidence from the prosecution. Here none was tendered. On this score alone the court below was right in allowing the appeal of the 2nd Appellant before it and acquitting and discharging her. Now what is the result and the legal effect of the court below allowing the appeal of the 2nd Appellant before 10 In his concurring judgment Nnaemeka-Agu, J.C.A. observed:- “But there is that lingering feeling that the evidence of P.W. 2 as it relates to the 2nd appellant might be true or could have been wrong. Combined with what was said in the lead judgment of his defence of alibi and the way he was brought into the case it would be unsafe to convict the 2nd appellant on it… But there is no such feeling not a similar defence of alibi in relation to 1st appellant.” In his lead judgment after considering the disparity and complete omission of the blame of the 2nd appellant (the daughter) in his Statement to the Police, EX.G, Ademola, J.C.A. observed at p.161 lines 30-35:- “In the light of all these, the question the learned Judge in the Court below should have asked himself is: Would it be safe to convict the second appellant given all the circumstances of these pieces of evidence? The answer in my view must be No.” I am in complete agreement with the views of Ademola, J.C.A. and Nnaemeka-Agu, J.C.A. as expressed above. My only observation is that those views, those questions, that lingering doubt cannot be possibly limited to the 2nd Appellant only but to the two Appellants. In the case of Mohammed Fiaz Baksh v. The Queen (1958) A.C. 167, two persons were as in this case accused of and tried for the offence of murder in British Guiana, they both relied on an alibi, both were convicted, both appealed to the court of Criminal Appeal of British Guiana. In that Court Statements of 3 prosecution witnesses were produced and proved. The Court of Appeal found that a comparison of the statement with oral evidence given by the witnesses at the trial disclosed material discrepancies. Because of this, one of the appellants had his conviction quashed and a new trial ordered, the reason given being ‘that in the interest of justice the value and weight of the new Evidence should be determined by a jury and not by the Court.” In the case of his co-accused, the Court of Criminal Appeal British Guiana held that different considerations applied and affirmed his conviction. On appeal to the Privy Council, Lord Tucker delivering the judgment of the Board said at p.172:-

“If these statements afforded material for serious challenge to the credibility or reliability of these witnesses on matters vital to the case of the prosecution it follows that by cross-examination the defence might have destroyed the whole case against both the accused… their credibility cannot be treated as divisible and accepted against one and rejected against the other. Their honesty having been shown to be open to question, it cannot be right to accept their verdict against one and reject it in the case of the other.” I share the view that in this case the evidence of P.W. 2 and P.W.4 will have to be accepted together or rejected together. If one discounts the evidence of P.W.2 which was in every respect the same as that of P.W. 4, one is faced with the problem whether the 2nd accused (the daughter) was present and threw hot oil on Ganiyu, the deceased. If she was not then P.W. 4 lied to the Court when he said she was. The decision of the Court of Appeal allowing the appeal of the 2nd appellant at the lowest meant that the Court was not satisfied that the prosecution proved the case against her. If the 2nd Appellant was not present the P.W. 4 lied when he testified that she was present and that she threw the hot oil on the deceased Ganiyu. It is here that the submission made by Sofola, S.A.N. that the case is fabricated deserves closer scrutiny. A case can be fabricated if:- (i) It has no foundation in fact, Or (ii) Although it has a foundation in fact the evidence connecting the Appellant with the offence was manufactured or invented or fabricated. It is common ground that there was a quarrel and a fight between the 2nd Accused (the daughter) and the P.W. 3 and that the two families of Shittu and Onafowokan were not on the best of terms. This admitted “malice” Is like a double-edged sword. It may account for the murder of the deceased, Ganiyu by the two accused person or it may account for the false charge now laid against the two accused persons by members of the Shittu family and their friends – P.W. 2 and P.W.4. This emphasises the point why the courts should be rather suspicious and skeptical of the absence of totally independent witnesses for the prosecution. This again casts some shadow of doubt on the veracity of the P.W. 2. As I observed earlier on, P.W. 2 and P.W. 4 will swim together or sink together. It the evidence of one is suspect for any reason whatsoever for the same very reason the evidence of the other would also be suspect. If the prosecution appealed against the acquittal of the 2nd Appellant by the Court below then this Court would have examined the reasons for her acquittal and ff not satisfied with them, the way would have been through and open to find both accused persons guilty of the offence charged. But here there was no appeal by the prosecution against the acquittal of the 2nd appellant. In the peculiar circumstances of this particular case there must still exist “that lingering feeling” that the case against the Appellant. In the peculiar circumstances of this particular case there must still exist “that lingering feeling” that the case against the Appellant might be true or untrue. In other words, there is bound to linger in the mind of this Court some doubt as to the guilt of the appellant. As observed by the Court below and rightly too when there exists such a doubt in any case for any reasons whatsoever “it would be unsafe to convict.” I therefore hold that it would be most unsafe in this case to convict the Appellant. Grounds 1 and 2 of the Grounds of appeal filed and argued therefore both succeed.  In the final result and for all the reasons given above and for the fuller reasons in the lead judgment of my learned brother Kazeem, J.S.C. which reasons I now adopt as mine, I too, will allow this appeal. The appeal is accordingly allowed, the conviction and sentence of the two Court’s below of the Appellant are both set aside and in their place is substituted “verdict of not guilty” and sentence of acquitted and discharged. Appeal allowed.

COUNSELS

Kehinde Sofola, S.A.N . with A.O. Aniagolu and Miss B.Bello For the Appellants.|A.N.Kesington , D.P.P. Lagos state For the Respondents.|

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