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SUPREME COURT OF NIGERIA
10TH MARCH, 1988.
SUIT NO. SC 133/1986
CWLR (1988) 2
(1988) NWLR (Pt.73) 683
BEFORE THEIR LORDSHIPS
CHILDREN AND WOMEN LAW: Safety of Women and Children – Domestic dispute resulting in death of woman and severe burns to another child
CRIMINAL LAW – Murder – Defense of accident – What amounts to
EVIDENCE – Determinants of the credibility of witnesses – Number of witnesses required for prosecution to succeed
OPUTA, J.S.C. (Delivering the Lead Judgment):
The Appellant Bayo Adelumola was arraigned before Okuribido, J. of the Lagos State High Court, on the 17th November 1983, on a charge of murder. The facts of the case lie within a comparatively short compass and are not very much in dispute. The prosecution’s case was that on the 10th July 1982 at about 1.30 p.m. at No. 10 Alayaki Court, Lagos, the Appellant had a row with one Ganiyu over a 10k coin. The row developed into a fight. During this fight one Wusamotu Alade called as P.W.3 entered the house. She saw the Appellant and Ganiyu fighting. She also saw lyabo, the sister of Ganiyu, now deceased, holding an empty bottle. The P.W.3 pulled lyabo aside and removed the empty bottle from her. P.W.3 also separated the Appellant and Ganiyu. One Adamo Sule called as P.W.2 helped to separate the Appellant and Ganiyu. P.W.2 then took Ganiyu outside the house but still within the compound. Later on, the P.W.2 heard the shout of fire! fire! and ran back into the house. There she saw fire and smoke surging out from the room of Asiawu Memudu called as P.W.1. She (P.W.2) then saw that the fire had engulfed lyabo Olowa, and Taju the son of Memudu (P.W.1). They were both ablaze. What was it that set the deceased on fire? Memudu P.W. 1 saw the Appellant carrying a burning stove and chasing lyabo Olowa into her room. The Appellant then threw the burning stove at lyabo who caught fire. The fire from the burning stove burnt the right foot of P.W.1 up to her ankle and seriously burnt P.W.1’s child Taju from head to foot. Monsurat another daughter of P.W.1 was burnt around the month. lyabo and Taju whose burns were serious were taken to the General Hospital while Monsurat was treated in a private hospital. The following day, the 11th July, 1982, lyabo Olowa died in the General Hospital.
It was Latifu Olowa P.W.4 and father of the deceased who reported the incident to the Police. He also identified the corpse of lyabo Olowa, deceased, to Ehidda Ranghen Koley called as P.W.7 – the Pathologist who performed the post monem examination. The Pathologist “saw fourth degree burn on the external part of the body” of lyabo Olowa, the deceased. He (7th P.W.) certified the cause of death to be shock due to burning.
The Appellant gave sworn evidence in his own defence. He called no further witnesses. He admitted the main outline of the prosecution’s case. He admitted that there was on that fatal day a row followed by a fight between Ganiyu, the brother of the deceased and himself. This row was sparked off by his discovery of “a dirty 10 kobo on the ground” which lyabo the deceased claimed belonged to her brother. He (Appellant) then handed over the 10 kobo piece to lyabo. This notwithstanding Ganiyu called him a thief. Then the quarrel started. This led to the fight. The Appellant conceded that “myself and Ganiyu were then separated” and “lyabo was then taken out of the compound”. The only difference between the prosecution’s case and the defence appears to be what happened next. I will therefore reproduce the ipsissima verba of the Appellant:
“lyabo later came back into the compound, carried a stove in front of her room and was about to throw the stove on me. I pushed her back. She slipped and fell into Ashiawu’s room. The stove exploded. It was not burning stove. As the stove exploded I saw fire burning. I got water and poured it on the fire and others came and helped to put the fire out.”
The above is the gist of the Appellant’s defence.
Thus from the evidence led on both sides, only one issue of fact emerged for the consideration of the trial judge:
Did the Appellant throw a burning stove at lyabo who then caught fire and later died of shock due to burning as the prosecution contends?
Was it lyabo who tried to throw the stove at the Appellant, who, in self-defence, pushed her back, causing her a slip and fall into Ashiawu’s room where the stove exploded?
To resolve the above solitary issue, the trial Court was bound to believe one side and disbelieve the other. Both sides could not have been speaking the truth on this contentious issue. How then did the trial Court deal with this issue of fact based on the credibility of the witnesses who testified? At pp. 38/39 of the record, the learned trial judge observed and found:
“I have carefully considered the facts of this case as far as the evidence before me can allow. I have found it proved that there was no fight between the accused and the deceased ….. I accept the evidence of the third prosecution witness that while the accused and Ganiyu were fighting the deceased stood by holding an empty bottle. I believe also that this witness pulled the deceased aside, took the bottle from her and threw it away while he took Ganiyu outside. I accept the evidence of the P.W.1 that the accused chased the deceased into her room and threw the burning stove at her. I reject the evidence of the accused as untrue and a calculated lie invented to get him out of the serious of-fence which resulted from his most atrocious, vicious act.”
Having made the above findings of fact, the learned trial judge then considered the defences open to the Appellant, namely Self-Defence and Accident. On Self-Defence he observed at p.37 of the record:
“If the facts had been as stated by the accused a defence of self-defence would have been considered.”
On the defence of Accident, the learned trial judge observed at p.37 of the record:
‘The fire was surely not caused by accident but by the deliberate act of the accused.”
And at p.39 of the record, the learned Judge continued:
“In my opinion the death of the deceased was the direct result of the deliberate act of the accused in throwing the burning stove at her. Even if the accused did not intend to cause the death of lyabo Olowa (deceased), there can be no doubt that when he threw the burning stove at her, as I believe he did, with the resultant wound described by the P.W.7 he knew that it would cause grievous harm to her, it would be unreasonable to think otherwise. He must in my view have, or taken to have, intended the natural and probable consequences of his act….”
On the above findings, the learned trial judge found the Appellant guilty of the offence of murder charged.
The Appellant then appealed to the Court of Appeal, Lagos Division. Learned counsel for the Appellant, Mr. Adefala, filed three original grounds (p.43) and one additional ground (p.53) of appeal. He also filed a Brief of Argument. After hearing counsel on both sides, the Court of Appeal (Ademola, Nnaemeka-Agu, and Kutigi, JJ.C.A.) dismissed the Appellant’s appeal and upheld and confirmed the conviction and sentence of the trial Court.
The Appellant has now appealed to this Court on four grounds. The Brief fled on behalf of the Appellant, barely three pages, was sketchy, half-hearted and left a lot to be desired. A Brief in a murder case, (a case having very serious consequences for the Appellant) deserves to be more purposeful, more substantial and more comprehensive, if a Brief has to be filed at all. But if there Is nothing to appeal against, learned counsel for the Appellant, as an officer of the Court, owes the Court a duty to say so. However, in contradistinction, the Respondent’s Brief of 24 pages is full and comprehensive enough to help the Court determine the is-sues in controversy.
The first Question for Determination as formulated in the Appellant’s Brief is:
“A Should not the Court be wary of convicting upon the evidence of P. W.1 who is shown to entertain grudge against the Accused?”
I do not know where learned counsel for the Appellant got the facts which led him to conclude that P.W.1 “is shown to entertain grudge against the accused”. The issue of any such “grudge” was not taken up in the Court of Appeal. What was argued there was Misdirection which appeared at p.53 as an Additional Ground of Appeal. The Particulars of the Misdirection set out were:
“(a) that the evidence of P.W. 1 was not corroborated by any independent witness;
(b) that none of the independent witnesses like Monsurat, Taju was called by the prosecution;
(c) that the proximity of the fire place to the P.W. 1’s room which is 6 to 7 was enough to render highly improbable the story of P.W.I.
(d) that the consistency of the story of the accused from arrest to trial was enough to create a doubt in the mind of the learned judge as to the guilt of the accused;
(e) that there was no evidence of actual fighting between the deceased and the accused.”
“Grudge” was not alleged above as a particular of the alleged misdirection. Unless it has been established that P.W.1 entertained a grudge against the Appellant (which has not been done here) it will be futile and merely academic to probe the effect and impact of a non-existence grudge on the evidence of P.W.I. The case of Oje v. The State (1972) 11 S.C. 23 mentioned in the Appellant’s brief will not therefore apply.
Issue No.1. as formulated above does reveal the usual mistake made by defence counsel in submitting before appellate Courts arguments going to credibility, arguments which should property be addressed to trial Courts in an effort to induce them not to believe certain witnesses. Surely the Court of Appeal, Lagos Division did not convict the Appellant. It merely upheld the conviction of the Appellant by the trial Court. And any trial Court has the liberty and the privilege to believe one side and disbelieve the other. That belief can only be questioned on appeal if it is obviously against the logical drift of the evidence considered as a whole or against the impact of the wave of probabilities disclosed by the evidence. For example, we all know that 2 plus 2 make 4. if a witness testified that 2 plus 2 make 5 and he is believed, his arithmetic does not cease to be wrong because the trial Court erroneously believed him. There, and in such a case, an appellate Court can intervene: R v. Rice (1927) 20 Cr. App. R 21. In Numo Mallam Alli AND Anor. v. The State (1988) 1 N.W.L.R. (Pt. 68) 1, I held that a ground of appeal attacking the belief reposed in a witness by a trial Court can only be urged in an appellate Court where the evidence though believed was incapable of belief by any fair-minded jury.
Can one say in this case that the evidence of Asiawu Memudu P.W. 1 was incapable of belief? This leads on to the rather basic question – What are the factors and circumstances that should induce belief? If they existed in this case, then the trial judge will be justified in believing otherwise the Court of Appeal should have intervened. Firstly no event happens in a vacuum without being caused or causing other facts or influencing them. These other facts, the antecedent facts and the subsequent events, from the surrounding circumstances of each case. The evidence of a witness to command and commend belief must therefore accord with the surrounding circumstances of the case as a whole. In this case, the evidence of P.W.2, P.W.3 and P.W.1 tell a coherent and completed story of a fight between Ganiyu and the Appellant, of the separation of that fight, of the Appellant’s urge to teach Ganiyu and his sister lyabo (the deceased) the lesson of their lives, of the Appellant pursuing lyabo and holding a lighted stove pursued her into the room of Asiawu Memudu P.W.1 who saw the Appellant throw the stove at lyabo setting her ablaze, and thus causing her death.
The credibility of a witness may also depend upon his knowledge of the facts to which he/she testifies. Here no one can successfully challenge the evidence of P.W.1. She knew the facts to which she testified. Other factors to be considered before believing a witness are his disinterestedness, his integrity, his veracity and his being bound by his oath to speak the truth. But these are matters to be considered and taken into account by a trial Court. It is that Court that should be persuaded not to believe the witness. If a trial Court believes a witness, then the onus shifts to the Appellant to show that these matters were not considered. They are not points to be raised for first time on appeal. In his Brief, learned counsel for the Appellant argued that since P.W.1 and her son were both injured by the burning stove then P.W. 1 “is obviously a tainted witness”. The short answer to that is that it does not necessarily follow. But it does follow that since P.W.1 was also injured by the burning stove, she was in a position to know who threw the stove that hit the deceased and injured her (P.W.1).
The next point taken up in the Briefs of learned counsel on both sides was whether it was safe to convict on what was described by the Federal Supreme Court in Alonge v. I-G. of Police (1959) 4 F.S.C. at p205 as “oath against oath”. In that case, that Court clearly and categorically stated:
“We are not prepared to say that a Magistrate may not convict on what is commonly called “Oath against oath” if, as in this case, he has sufficient reason to prefer the evidence of the witness for the prosecution to that of the accused.”
And that is exactly what happened here. To my mind to attack a judgment on the ground that it is “oath against oath” is a very feeble attack for ultimately every case is decided on the principle of “oath against oath” – the oath of prosecution witnesses against the oath of defence witnesses; or the oath of the Plaintiff and his witnesses against the oath of the Defendant and his witnesses; the oath of those who swear to the affirmative of the issue and those who swear to the negative. Thus in its plenitude, no one needs quarrel about oath against oath. But the quarrel here (as in other case) seems to be the oath was of P.W.1 was preferred to the oath of the Appellant; that the P.W. 1’s evidence that the Appellant threw the burning stove at the deceased was preferred to the Appellant’s version that it was the deceased who wanted to throw the stove at him and he pushed her back in self-defence. She fell and the stove exploded on her. This again will raise the question of the credibility of witnesses which I discussed earlier on, in this judgment, as well as how many such witnesses should be called in proof of an essential issue. As to credibility, the trial Court that saw the witnesses, heard them, and watched their demeanour in the witness box, is in a very peculiar vantage position to believe or disbelieve. That advantage can never be recaptured by an appellate Court which accordingly is thus bound to accept the judgment of the trial Court on matters of credibility.
On the other issue of how many witnesses the prosecution need call to succeed, the answer, from all the cases decided by our Courts, is that one solitary witness is enough, If his/her evidence proves the essential issue in dispute, and if he/she is believed. The point made in R. v. T. Udo Essien (1938) 4 W.A.C.A. 112 was that the witnesses called proved to be insufficient to establish the offence charged. In such a case, it was necessary to call other relevant witnesses. That case dealt with sufficiency of evidence and not necessarily with the number of witnesses the prosecution should call. Truth is not discovered by majority vote, not by counting hands or heads. Except in cases where corroboration is required either by law or age old practice, one witness’s evidence if believed (as the evidence of P.W.1 was believed here) can establish even a murder case. The attack on the judgment appealed against from this flank fails.
The next Question For Determination I will like to consider is:
“Whether or not on the evidence before the Court the accused was acting in Self-Defence.”
When one talks of evidence before the Court one necessarily implies credible evidence, evidence that was believed. The trial judge at p.37 of the record admitted that “if the facts had been as stated by the accused a defence of self-defence would have been considered…..”. But the learned trial judge “rejected the evidence of the accused as untrue and a calculated lie”. Just how can any Court of law and justice consider a defence based “on a calculated lie”. Once the Appellant’s story was disbelieved the bottom was knocked out of any possible defence of self-defence. On the evidence of the Prosecution witnesses especially P.W.1 there was no material on which Self-Defence could have been considered in favour of the Appellant. This flank of the attack also fails.
The next issue to be considered is the defence of Accident. In his judgment, the trial judge described the act of the Appellant resulting in the death of lyabo, the deceased, as “deliberate’’. The section of our Criminal Code Cap. 42 of 1958 dealing with the defence of accident in Section 24. This section stipulates:
“S.24. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident. ………………………………..”
In this case we have:
(i) the doing of an act, namely, the throwing of the burning stove at the deceased; and
(ii) the event that followed, that is, the death of the deceased.
The learned trial judge found that the doing of the act -the throwing of the stove – was willed, it was deliberate, it did not happen by chance. Was the death resulting therefrom accidental in the sense that it was neither intended nor foreseeable? The learned trial judge also dealt with this fact of Section 24 above when he found:
“Even if the accused did not intend to cause the death of lyabo Olowa (de-ceased) there can be no doubt that when he threw the burning stove at her … with the resultant wound described by P.W.7 he knew that it would cause grievous harm to her … He must in my view have, or taken to have intended the natural and probable consequences of his act ……..”
It seems to me that the expression “an event which occurs by accident” used in Section 24 of Cap. 42 of 1958 describes an event totally unexpected by the doer of the act and also not reasonably to be expected by any ordinary person, the reasonable man of the law. In other words, the test is both subjective from the stand-point of the doer of the act, as well as objective from the stand-point of the ordinary man of common prudence. The event should, to qualify as accidental, be surprise both to the doer of the act that caused it, and a surprising thing to all and sundry. An event is thus accidental if it is neither subjectively intended nor objectively forseeable by the ordinary man of reasonable prudence. Our law is that a man is presumed to intend the natural consequences of his acts. Now one consequence – natural consequence of throwing a burning stove at another will be to set that other ablaze. This consequence is not so improbable that a person of ordinary prudence ought not under the surrounding circumstances of this case to have taken reasonable precautions against it. Fire burns and throwing fire at somebody implies the possibility of his being burnt. Here the deceased was burnt and she died as a direct result of her burns. The two Courts below were right in dismissing the defence of accident.
The final Question For Determination as formulated in Appellant’s Brief is:
“Is the Statement of the Accused to the Police really at variance with his testimony given in Court? If so, doesn’t the Statement constitute evidence on which the Court cannot act?”
The real question in controversy here is whether or not the stove was lit. Was it a burning stove that he (the Appellant) threw at the deceased? In Exhibit A the Appellant said inter alia:
“She later carried a stove trying to beat me with it, then I kicked the stove from her hand and the stove blast to fire and the fire caught lyabo Olowa and two others……”
I simply cannot figure out how an unlit stove can “blast to fire” on being kicked. In his evidence in Court, Appellant was positive that “it was not a burning stove” but he soon added “as the stove exploded I saw fire burning”. In any event, it is quite unnecessary to prove the conflict if any between the Appellant’s Statement to the Police Exhibit A and his evidence in Court for the learned trial judge “rejected the evidence of the accused as untrue”. He did not say he rejected that evidence because of any alleged conflict between the Appellant’s Statement to the Police Exhibit A and his sworn testimony in Court.
Turning to the next question posed by this Issue for Determination, an Accused/Appellant’s Statement to the Police is evidence of the fact that it was made but being an extra judicial statement it is not evidence of the truth of its contents: See Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965; M.A. Sanusi v. The State (1984) 10 S.C. 166 at pp. 198/199. A trial Court can use the statement of an accused person to test his consistency and thereby his credibility. In the case on appeal, there is no material difference between Exhibit A (Appellant’s Statement to the Police) and his sworn testimony in Court. The statement of the Court of Appeal per Kutigi, J.C.A. at p.78 lines 26-29 that there was “a material contradiction” between the two is not quite correct. But that is neither here nor there. The important thing is that the trial Court disbelieved the story of the Appellant whether as contained in Exhibit A or in his sworn testimony in Court. From the evidence of P.W.1 accepted by the trial judge, the stove was lit and burning when the Appellant threw it at the deceased. This then concluded the issue on this Question For Determination.
In the final result this appeal fails. It is hereby dismissed. I uphold the conviction and sentence of the trial Court and I confirm the appeal judgment of the Court below. Appeal dismissed.
I have had the privilege of a preview of the judgment which has just been delivered by my learned brother Oputa, J.S.C. and I am in complete agreement.
I abide by the conclusion and orders made in the said judgment of my brother Oputa, J.S.C.
I had a preview of the judgment just delivered by my learned brother, Oputa, J.S.C. and I entirely agree with his reasoning and conclusions. The question was whether the sequence of the fatal event was that it was the deceased who wanted to throw the burning stove on the Appellant and he, in self-defence, pushed her off and she fell with the stove, or as an eye-witness stated, it was the Appellant who chased the deceased and threw the burning stove on her. The learned trial judge disbelieved the Appellant’s story and his finding was con-firmed by the Court of Appeal. In such circumstances, the learned trial judge could not have given any importance to the defences of self-defence and accident. The appeal is unmeritorious and for these reasons, and the exhaustive reasons given in the lead judgment, I do also dismiss the appeal.
I have had the opportunity of reading in draft the judgment read by my learned brother Oputa, J.S.C. For the reasons contained in the said judgment I too will dismiss the appeal and it is hereby dismissed. The decisions of the High Court and the Court of Appeal are affirmed.
I have the privilege of reading in advance the lead judgment of my learned brother, Oputa, J.S.C. with which I agree. I also dismiss this appeal. Appeal dismissed.