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19th February, 1971

SUIT NO. 324/1970.

3PLR/1971/2 (SC)







Akinrele for the Appellant.

Ejiwunmi, (Senior State Counsel, Lagos State) for the Respondent.



CRIMINAL LAW – Murder – Defence of Alibi – Who has the onus to discharge

CHILDREN AND WOMEN LAW: – Children and Murder – Death of young boy by gun shot



LEWIS, J.S.C. (delivering the judgement of the Court):-

In charge No.IK/2C/70 in the Ikeja High Court three accused persons were charged with the murder of Ezekiel Eche before Adebiyi J., sitting with a jury and on the 15th May, 1970 the 1st accused was convicted whilst the other two accused were acquitted. On the 11th February, 1971 we dismissed the appeal of the 1st accused and we now give our reasons for so doing.


The case for the prosecution against the appellant was that on the 15th January, 1969 at Lapuro Village near Orugbo the 3rd P.W. heard in the night someone knocking at his door and calling on him to open it. He recognised it as the voice of the 1st accused who was a friend of his. He opened the door, saw the 1st accused wearing a hunter’s lamp on his head and said “Oye are you the one?” He was answered by a gunshot and on turning back into his house to get his own dane gun heard another gunshot so he called to his children to run for their lives, but yet another gunshot hit his son Ezekiel who later died as he was being taken to Epe Hospital. The doctor who examined the body found that death was due to shock and haemorrhage due to multiple gunshot wounds all over the body.


On the 17th January, 1969 the farm of the accused was searched and the 9th P.W. (a Nigeria Police Corporal) found three dane guns in the accused’s but one wrapped up in the mat on his bed and two in a loft. Two of them the accused said were out of order and the third he said belonged to another man whose whereabouts he did not know. The accused also told the 9th P. W. that he had another gun that he was using and that was in another hut to which he took him and the 9th P.W. there found a fourth dane gun. In fact the 4th P.W. (a Chief Superintendent of Police) who was a ballistics expert found that all four guns could still be used. The 1st accused was arrested before the search of his room and then made a statement (exhibit V, translated as exhibit Vi) in which he said:-

“I know Matthew, his village is near my farm. He went to cultivate the farm in which I planted Kolanuts, hence we fought, but it has been settled since about a year ago. Since then I used to go to his village and whenever I am thirsty I used to drink in his house. Four days ago when I was passing to my farm I saw him and his children. I did not spend long time after I have gone to look at my wire traps that I set I returned home. Three days ago I learnt that thieves have gone to meet him in his house and that he and his children were fired. I have two dane guns and hunting carbard lamp for hunting. Five days ago I killed a monkey with my gun, I sold it to one Agatu at Orugbo (at the rate of 4/-). Matthew was telling lies if he said that he called me at night when thieves went to meet him.”


After the search he made another statement (exhibit W and translated at exhibit Wi) which read:-

“I am a farmer, but I used to hunt and I used to set animal traps. The reason why I went to hide the two dane guns that the police men met in my house on the ceiling where the police men met them was because, when I heard that thieves have gone to attack Matthew and children with guns and that his loads have removed away, I was afraid I went to hide them on the ceiling.

The two dane guns are out of use the third one met on the ceiling is not mine, the owner of the small one is called Igbala and I don’t know to where his work carries him now.

It is the same thing which happened to Matthew that made me to go and kept the real gun I using in the hut where I showed police. I was afraid too, hence I went to hide my carbard, danegun bullets and gun powder on Kolanut trees, also I don’t want rats to eat the bag in which I kept them. It has been a long time I bought the dane guns.”


Finally on the 18th January, 1969 he made yet another statement (exhibit X and translated as exhibit Xi) which read inter alia:-

“In continuation of my statement to police on the 4th day of this week 14/1/69 at about a little after twelve midnight, somebody came to knock at my door, I asked who is that? Bashiru answered me. I opened the door for him, he asked me to escort him to Baba Johnbul’s farm (Matthew Ethe) I asked him what he was going to do, he told me that he was going to buy fowl from him. I then followed him, getting half way, I met Moibi of Orugbo Village, Rasaki of Orugbo Village, Taiwo junior brother to Rasaki 2nd in command to Imman of Orugbo Sebi’s father Obikumo now of Otah, Layemi of Orugbo Village, Agaba of Oke Odo, Alabi of Orugbo village, I took notice that Obekumo was with his gun and hunting lamp. Bashiru was already with his hurricane lantern. I also noticed that Agaba was with his own gun. As I saw these people on the road, I was afraid. I asked Bashiru why should these people sit on the road, he told me that they are going to a village yonder, he told me that if I say anything, I will be beheaded. I took notice that Moibi was with a matchet also Rasaki, (Oloruneshebi’s) Olorunrinu’s father who was also with them. They put me in their middle and faced Matthew’s village. As we got to the village, Obekumo knocked at the door and gave my name when Matthew answered him and asked of the person knocking the door in Yoruba ‘Ijebu’ language; for so I used to call him whenever I was passing there by day or night when I was going on a hunting. He opened the door for him, then Obekumo fired him, so Matthew fell down with the lamp in his hand, Obekumo ran into the house and removed Matthew’s gun where he kept it in his room, then he fired at him the second time.

It was the first shot that met Matthew all the second one was the one which met his children. They all started to cry and ran into the bush. Then all the people I named above ran into the house and started to search Matthew’s house. I took notice that one of us took a tin which looked like a tin of Ovaltine which contained money. Those removing boxes of clothes were doing so, the boxes of the clothes were about three and I did not know all things there removed again. When they finished the business, they distributed the loads amongst themselves and they scattered. It was at the place where I met the above named people when Bashiru came to wake me we met again; there one lorry which is being used in carrying sand came to us, then the loads were packed in it and they faced Agbowa road; but I did not enter the motor with them. Then I returned home.”


The accused in his evidence denied going to the house of the 3rd P.W. and shooting there and said that he was at his own home at the night in question though he did not give any other evidence in support of his alibi. He further said that the statement exhibit X was only made after he had been beaten up.


The learned trial judge in summing up carefully directed the jury on the matters in issue and the jury then had convicted the 1st accused. Mr Akerele was unable, rightly in our view, to urge anything on his behalf and we accordingly dismissed the appeal.


We would only wish to add that when dealing with the cases of the 2nd and 3rd accused, which we have not thought it necessary to deal with in this judgement as they were acquitted, the learned trial judge made a general statement:

“Let me say that although the burden to prove an accused person’s guilt is always on the prosecution if the defence were one of alibi then that is for the accused person to establish.”


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 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 words used by the learned trial judge, albeit in regard to the 2nd and 3rd accused, are somewhat ambiguous, but we do not think in any case the jury could have been misled or that it could have affected the view they took of the case of the 1st accused. We have, however, thought it right to draw attention to the point so that there may be no possible misunderstanding of the law in future.


Appeal dismissed.




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