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OYO STATE HIGH COURT, UNREPORTED
25 FEBRUARY 2000
BEFORE: Moshood Adio, J,
Kola Thomas – for the state
Nathaniel Oke – for the acccused
High Court of Oyo State, Ibadan [Before Justice Moshood Adio]
CRIMINAL LAW AND PROCEDURE:- Causing death through the procurement of unlawful abortion – Burden of proof – Duty of prosecution thereto – Whether not dependent on calling all the witnesses scheduled
CHILDREN AND WOMEN LAW:- Women and Justice Administration/Healthcare access – Babies and Right to Life – Death of a woman through unlawful abortion provided by a person not qualified to practice as a physician – Life sentence stipulated by law commuted to 12 months imprisonment
HEALTHCARE AND LAW:- Procurement of abortion – Person not qualified to practice as a physician – Death arising therefrom – How proved – Sentencing considerations – How treated
In a criminal case, the burden of proving the prosecution’s case does not depend on calling all the witnesses on the information sheet, they could decide to call only those sufficient to prove the case.
Based on the evidence before me, I hold that the accused performed an abortion on the deceased, which resulted in her death, the prosecution has proved their case, the accused is therefore found guilty as charged and I convict him accordingly.
The accused, Ahmed Olayiwola (33) was arraigned in 1994, for causing the death of a 16-year-old girl, Bukky Odukoya, through the procurement of illegal abortion on her.
Specifically, Olayiwola was charged with killing the deceased on September 27, 1993 at the Love Hospital, Agodi, Ibadan contrary to Section 325 of the Criminal Code Cap 30 Laws of Oyo State(1978).
The trial before Justice Moshood Adio has be on for six years.
Counsel to the accused.
Counsel to the accused Nathaniel Oke entered a plea of not guilty, arguing that the prosecution erred in law by failing to present material witnesses in the matter.
Essentially, Oke insisted that the failure to call the proprietor of the hospital where the abortion was allegedly carried out, as well as the deceased’s boyfriend rendered the trial null and void.
Citing Agunbiade v the State (1999) 4NWLR pt 599 page 391 at 400-401 and Ogbo v the State (1990) 3NWLR pt 139 page 448 or 50, he said that the issue to be determined was whether the accused’s alleged actions actually led to the deceased’s death.
In his view, Olayiwola merely assisted Odukoya to relieve her condition, by administering on her drugs which were to ease her pains and not with intention to cause her death.
Oke who also cited Hamara v Commissioner of Police (1998) 7NWLR pt 537 page 215 at 220, urged the court to discharge and acquit the accused.
The state counsel, Kola Thomas insisted that the accused be held liable arguing that there was clear evidence that he (the accused) did not posses any medical qualification to enable him practice as a medical doctor . Counsel stressed that the law frowns on the recklessness of those who do not posses the necessary skill or knowledge to operate on innocent persons.
He argued that the deceased’s death was caused by drugs administered on her by the quack doctor (the accused).
MOSHOOD ADIO, J.
Justice Adio held that there was no substance in the submission that failure to call key witnesses was fatal to the prosecution’s case. He said: “Burden of proving a prosecution’s case does not depend on calling all the witnesses on the information sheet, they could decide to call only those sufficient to prove the case.”
He added: “Based on the evidence before me, I hold that the accused performed an abortion on the deceased which resulted in her death, the prosecution has proved their case, the accused is therefore found guilty as charged and I convict him accordingly.”
Following pleas from the accused’s counsel, who urged the court to temper justice with mercy, Justice Adio commuted the life imprisonment stipulated by law to 12 months or an option of N50,000 fine.