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14TH APRIL, 1972.

SUIT NO. SC 110/1971.

3PLR/1972/26 (SC)



(1972) LPELR- SC 110/1971








CRIMINAL LAW AND PROCEDURE – ARSON:- How proved – Element of Mens rea – How discharged – Defence of Alibi – Duty of prosecution thereto – Whether can be rebutted by way of cross-examination

CRIMINAL LAW AND PROCEDURE – EVIDENCE:- Sworn evidence of a child – Whether requires corroboration before it can be acted upon by a judge – Duty of court thereto

CHLDREN AND WOMEN LAW:- Girl-child and Justice administration/Education – Young girl of 10 who did not attend school – Evidence as to observed criminal conduct – Difficulty in telling time and distance connected with evidence – How treated



A Atilade Esq., for Appellant.

N. E. Gbemudu Esq. (DPP. Mid West) for Respondent.




LEWIS, J.S.C. (Delivering the Judgment of the Court): In Charge No. U/10C/70 in the High Court at Ubiaja the information against the accused read:

“At the Sessions Holden at Ubiaja on the 14th day of September, 1970, the Court is informed by the Director of Public Prosecution of the Midwestern State of Nigeria on behalf of the State that Uwadiale Arebamen (m) is charged with the following offences:


Arson, contrary to Section 382(a) of the Criminal Code Cap. 28 Vol. 1, Laws of the Western State of Nigeria 1959, applicable in the Midwestern State of Nigeria.


UWADIALE AREBAMEN (M) on the 5th day of March, 1970 at Ukpaja Village Ubiaja, in the Ubiaja Judicial Division wilfully and unlawfully set fire to the building of Atupele Imhenen (m).


Arson, contrary to Section 382(a), of the Criminal Code, Cap. 28 Vol. I, Laws of the Western State of Nigeria, 1959, applicable in the Midwestern State of Nigeria.


UWASIALE AREBAMEN (m) on the 5th day of March, 1970 at Ukpaja village, Ubiaja, in the Ubiaja Judicial Division wilfully and unlawfully set fire to the building of Okoduwa Ohien (m).”


On the 29th of March 1971 Oki, Ag. J. convicted the accused on both counts and sentenced him to seven years imprisonment with hard labour on the 1st count and five years imprisonment with hard labour on the second count, the sentences to run concurrently, and against that decision he has appealed to this Court.


There was only one eye witness whom the prosecution called as to the incident and that was the 10 years old daughter (3rd P.W.) of Atupele Imhene (2nd P.W.) whose building was the subject matter of the 1st count. Her evidence given on oath after learned trial Judge examined her and was satisfied that she understood the meaning and significance of it, was so vitally important that we now reproduce it in full:

“My name is Philomena Atupele. I live at Ukpaja village in Ubiaja. I do not go to school. I have never been to school. I know 2nd Prosecution Witness. He is my father. I also know the accused person. He is a brother to the man who married my sister, Martha. I stay in the same house with my father, and my mother.

I know one Okodua Ohien. He lives very close to our house. Between last year and this year my father’s house got burnt. It was last year. It was during the dry season. The incident occurred during the schools’ recess period.

When the house was burning my father was in the farm. At that time my mother went to the market.

The fire started burning from the back of the house. I saw when the fire started. First of all I saw some smoke. Before I saw the smoke I saw somebody. It was the accused person I saw. I saw him light a match which he set to the rubbish near our house. After that I saw accused running away. As the accused was running away the fire started burning. When the fire was burning I started to shout. When the fire was burning I was hailing on Okodua because it was spreading to our house. The fire first spread to the place where my father tied his maize. Later it spread from there to my father’s house. From my father’s house the fire spread to Okodua’s house.

Okodua came to the scene when I hailed on him. When he came out he started to extinguish the fire.

When my father returned from the farm I told him something. I told my father how accused burnt his house.”


Cross-examined by Okpere:

It is true that at the Preliminary Inquiry I told the Magistrate that accused person started the fire by throwing a lighted match in the bush close to our house. The distance between my father’s house and the spot where the accused threw the lighted match in the bush is about 30 feet. I did not say at the Preliminary Inquiry that the distance was about 400 feet. I am not just lying against the accused.

To Court:

There was no other person with me at the time I saw accused throwing a lighted match into the bush near our house. I told Okodua that accused started the fire and so Okodua began to pursue the accused. At the time I was telling Okodua that accused started the fire, the accused was no longer in sight. Okodua returned a while after pursuing the accused. When he returned he did not tell me whether or not he saw the accused person whom he was pursuing. When returned from pursuing the accused he (Okodua) met my father’s house in flames the fire had not spread to Okodua’s own house.

Re-examination by Omoluabi:



The 1st P.W. (A Police Corporal) who investigated the incident said that on the 5th of March, 1970 he went to Ukpaja village in Ubiaja where he saw the burnt houses of the 2nd and 4th P. Ws. He also said that he made a sketch map which he used to refresh his memory at the hearing (though it was not made an exhibit) and from which he said that the 3rd P.W. had stated that the distance between the point where the fire was started was about 45 yards from the nearest building set on fire and:

“The house of the accused person is along the same line as those of Atupele and Okodua. The house of the accused is further away from the area where the fire started as compared with the house of Atupele. The place where the fire started is directly behind the house of Atupele.

Okodua’s house is about ten feet from the house of Atupele along the same line. The same sketch of grass goes by the house of the Atupele, Okodua and the accused. The distance between the house of the accused and the nearest burnt grass area is about 300 yards.”


Under cross examination he said:

‘What I have been referring to as grassland is not really pure grassland; it is a sort of scrubland… Philomena told me that accused set fire to the bush in the morning before the Schools’ recess period which is generally about 11 o’clock in the morning. Philomena would not explain properly to me how long the interval was between the time the fire started and the recess period”


The accused made a statement (exhibit “A”) in which he said inter alia:

‘Today, I come from farm for 9 o’clock In the morning. I say my bicycle way no good, make I go repair am. Almost 10 o’clock in the morning I comot for house to repairer place at Ubiaja near Mission. I finish repairing my bicycle by 3 o’clock for afternoon. After that me and one man called O.C. go drink at Tony Ogiagbe’s house at Oyomo. When I just day come at Ago Hausa somebody tell me say he hear say some house bum at Ukpaja.”

and later denied that he was in any way responsible for the fire. In his evidence the accused maintained his innocence and continued to put forward the alibi that he had gone to get his bicycle repaired at the material time and he called one Francis Odiawa, the bicycle repairer, to support his story. There were, however, differences in their stories and statements as to the time that he left his house to go to the bicycle repairer and as to whether he went to his farm before doing so and also as to the time he reached the bicycle repairer and left him, but the learned trial Judge disbelieved the alibi as a whole and rejected it and accepted the evidence of the prosecution witnesses and in particular that of the 3rd P.W.


Mr. Atilade’s first point for the appellant was that the learned trial Judge was wrong to reject the alibi because of the discrepancies of time, and also because he found that the incident occurred at 11 a.m. when in Mr. Atilade’s submission the evidence did not substantiate this as the learned trial Judge decided it was 11 a.m. because the 3 P.W.’s recess at school was normally at 11 a.m. and she said it happened before the recess, yet actually according to her evidence she said it occurred during the recess. Mr. Atilade further contended that no evidence was offered as to how long the recess was, so discrepancies in time should not have been a basis for rejecting the alibi. The real issue to our mind however is that, though the question of the time of the recess certainly appears from his judgment to have played a part in the learned trial Judge’s decision to reject the alibi, the vital points were that the learned trial Judge rightly pointed out the discrepancies in time in the evidence of both the accused and his witness as to what was said in Court and as to what was said in their statements and he made a specific finding that the accused was ’an untruthful witness’ and he thought the accused’s witness’s memory ‘must either have slipped or he was trying to cover up the accused’. We think that on the evidence before him the learned trial Judge was entitled to come to the conclusion that he did not accept the alibi of the accused especially when he very properly warned himself of the law to be applied when he said in his judgment:

“In rejecting the defence of alibi set up by the accused, I am conscious of the settled law in the case of The Queen v. Turner AND Others (1957) Western Nigeria Law Reports page 34 which says that the Court should not lightly disregard evidence of alibi. Certainly the prosecution must try to dislodge an alibi; and indeed, at the end of the Prosecutions’ case the Court may be in doubt whether the defence of alibi made by an accused in his statement to the police or by way of cross- examination to the Prosecution Witnesses has been dislodged. But the Issue of alibi often assumes an entirely different aspect after the accused person and/or his witnesses have gone into the witness box and have been cross-examined. In this particular case, after the accused and his witness went in to the witness box and were cross-examined, it became quite clear that the defence of alibi set up was quite a nebulous one which must be disregarded. I have accordingly disregarded it.”


Mr. Atilade did not dispute that that direction in the judgment was a correct statement of the law but he maintained that the prosecution had not dislodged the alibi. In our view, as we have said, though we agree the onus is on the prosecution to disprove the alibi, as the learned trial Judge rightly stated, since we said in Adedeji v. The State Sc. 324/70 (unreported) of the 19th of February, 1971:

‘We think that what he was intending to say, though he might have perhaps more happily phrased it, is that if an accused person wishes to put forward an alibi it is for him to offer evidence accordingly but if he does put forward evidence then the onus is not on him to satisfy the jury that the alibi on such evidence is established but for the prosecution to disprove the alibi. We must emphasize that there is no onus on the accused to satisfy the jury on the alibi once he has put forward evidence which might establish it. (Cf. R. v. Johnson (1961) 1 W.L.R. 1478 and Yanor v. The State (1965) N.M.L.R. 337)”,


The learned trial Judge was entitled to come to the conclusion that he did that the prosecution had discharged that onus of disproving the alibi. Mr. Atilade then submitted that the learned trial Judge was wrong to rely on the uncorroborated evidence of the 3rd P.W. when she was only a girl of 10 as it was highly desirable to have corroboration of her testimony and dangerous to convict without it. Had the learned trial Judge not adverted to the point we would have agreed with him but in fact he several times specifically reminded himself in his judgment of the danger saying inter alia:

“In arriving at the above findings of fact, particularly at my finding No. 10 which implicates the accused. I have given careful thought to the usual factors to be considered in accepting uncorroborated evidence of a child – namely the possibility of the child being under the influence of a third party (in this case, the father) and the likelihood of the child’s imagination running away with him or with her. In this particular case Philomena could not have been influenced by the father (2nd Prosecution Witness) because the father was away to farm when the incident occurred, and within minutes (if not seconds) of the incident – ever before the father returned from farm – she had hailed on Okodua and told him how accused started the fire. Moreover there was no possibility of confusion of the identity of the person who started the fire; not only because the incident occurred during broad day-light, but also because Philomena knew accused very well as the brother of the man who had married her sister. From her performance in the witness box I am also sure that she did not allow her imaginations to run away with her. Moreover as already hinted, during her evidence she proved more intelligent and mature than my earlier assessment of her age as ten years. Finally, in relying on the evidence of Philomena Atupele, the only eye-witness in this case, I have warned myself in accordance with rule of practice, of the dangers of convicting an accused on the uncorroborated sworn evidence of a child:”


We think that was a very proper direction and there is no requirement in law that the sworn testimony of a child must be corroborated. Certainly it is desirable to look for corroboration but if the learned trial Judge fully considers the matter and comes to the conclusion that he believes the sworn testimony of the child he is entitled to act on that alone just as much as if it had been the sworn testimony of an adult. In Orosunlemi v. The State (1967) N.M.L.R. 278 at 280 we said:


“Mr. Akinsanya for the appellant argued as his first ground of appeal:

‘in accepting the testimony of the 1st prosecution witness, the learned trial Judge failed to warn himself on the danger of acting on the uncorroborated sworn evidence of a child of tender years. There was no corroboration of the testimony of the 1st prosecution witness were the same inculpated the Appellant.’

and cited in support the recent decision of this Court on the 20th of March, 1967 In Akpan v. The State (1967) N.M.LR. 185 where we stated when dealing with whether a Judge must warn himself of the risk of acting on the uncorroborated sworn evidence of a child, when that child is not an accuser, that –

‘It was desirable practice that this should be done, not that it was a requirement so that if it was not done the appeal court must allow the appeal. It must in our view depend upon all the circumstances of any particular case whether in fact, if a Judge does not warn a jury or if sitting alone does not warn himself of the risk involved in relying solely on the sworn evidence of a chili under fourteen years, the court can be satisfied that there has been no miscarriage of justice.’


In that appeal we found that the learned trial Judge, whilst not warning himself, did look for corroboration and found it in what, we held, was in fact not corroboration and we accordingly allowed that appeal. The present appeal is not at all on all fours in this respect as here while the learned trial Judge did not warn himself, he clearly addressed his mind carefully to the fact that the 1st prosecution witness was only a girl of 11 yet understood the nature of the oath and the necessity for telling the truth.


We accordingly saw no merit in this submission. Finally Mr. Atilade then submitted that the accused could not be convicted under S. 382 of the Criminal Code of the Mid-West which reads:

“382.         Any person who wilfully and unlawfully sets fire to any of the following things:

(a)     any building or structure whatever, whether completed or not; (b) any vessel, whether completed or not;

(c)     any stack of cultivated vegetable produce, or of mineral or vegetable fuel; is guilty of a felony and is liable to imprisonment for life.”,

but could only have been convicted if at all under S. 383(2) which section reads:

“383. ………………………….

(2)     Willfully and unlawfully sets fire to anything which is so situated that any such thing as is mentioned in the last preceding section is likely to catch fire from it;

is guilty of a felony, and is liable to imprisonment for fourteen years.”


Alternatively he argued that if the accused could be convicted under either section then the necessary intent required by the use of the word ‘wilfully’ was not established here. It was his submission that, as the fire that the accused was found to have started was not to either of the buildings in question that were destroyed but to the bush some distance away from them, this meant that the prosecution could not prove that he set fire to either building itself, and that accordingly the most he could be convicted of was setting fire to something which was situated so that the buildings might catch fire from it, and in his submission as the evidence of the 1st P.W. was that the distance the 3rd P. W. showed to the 1st P.W. from the nearest building to where the accused set fire to the bush was 45 yards it was not so situated. As a further alternative he argued that if Section 382 was found to apply then the prosecution had not shown that the accused set fire wilfully as he might have done so carelessly.


Now first of all we must indicate that in order to prove that a person has set fire to a building we do not think that is necessary to prove that he actually set fire directly himself to a part of that building if it can be shown that he did a deliberate act whereby he either intended to set fire to or was reckless whether it was likely in fact to set fire to a building which does catch fire. Section 383(2) to our mind is contemplating the setting fire to an object which is situated so that a building (or other things mentioned in section 382) is likely to, but not necessarily does, catch fire. If the building in fact catches fire and the accused by his deliberate act intended this or was reckless whether or not it was likely then he has wilfully set fire to that building so as to come within section 382 though it must also be established that he did so without justification in order to show that his action was unlawful.


Here therefore the issue to our to mind is narrowed down to determining whether by action of the accused (assuming, as we have indicated it must be, that it was proved that he did deliberately set fire to the bush) he intended to set fire to or he was reckless whether or not the consequences of his act would be likely to set fire to the buildings in question. Intent is of course difficult to prove affirmatively without a confession from the accused and can frequently only be determined by looking at all the surrounding circumstances and deciding therefrom whether the natural inference is that such must have been the intention. A material factor must be the action or conduct of the accused himself and here in this case two matters arose. Firstly the accused never suggested that what he was found to do was either lawful or that he set fire by accident to the bush because his whole case, which was rejected, was that he was never there and never did it. Further the learned trial Judge specifically believed the evidence of the 3rd P.W. and made a finding accordingly that she saw the accused after setting fire to the bush run off. Such running away from the scene of the alleged crime is to our mind quite different to seeking to escape from arrest by the Police about which we commented at page 281 in Orosunlemi v. The State (supra), and is all part of the res gestae there was further evidence that the accused was far from his home at the place where he set fire to the bush – indeed the evidence was that his home 300 yards behind the nearest point where the grass was burnt or in other words that the buildings burnt were in direct line between the spot where the accused set fire to the bush and his own home and he offered no explanation as to what he was doing setting fire to the bush in such an area.


We do not think the learned trial Judge specifically accepted that part of the evidence of the 1st P.W. whereby he said that the 3rd P.W. showed him the spot where the accused set fire to the bush and that it was 45 yards from the nearest building that caught fire though to be fair to Mr. Atilade the learned trial Judge did say generally that he believed the evidence of the 1st P.W. yet he also made a specific finding to the effect:

‘That the fire which burnt the house of Atupele and Okodua started at a spot in a grass area directly behind, and quite close to, the barn of Atupele.”


There was other evidence that 3rd P.W. gave varying distances of 30, 10 and 7 feet as the distance from the nearest building to the point where the accused set fire to the bush. The 3rd P.W. was a girl of 10 and cannot to our mind have been expected to define accurately and precisely the distance in question but even if we put the construction most favourable to the accused on her evidence and believe that the learned trial Judge accepted 46 yards as the distance in question, nonetheless we think that since the other evidence was that the area was scrubland and very dry, being at the end of the dry season and likely to be very combustible, it was in no way wrong for the learned trial Judge to infer therefrom that the deliberate act of the accused in setting fire to the bush where he did was wilful in that he must have intended or was reckless as to the likely consequence from his act being the setting fire to the buildings In question.


We accordingly think that the accused was rightly convicted on both counts under Section 382 of the Criminal Code of the Mid-West and the appeal is therefore dismissed.


Appeal dismissed.


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