Elizabeth Ogundiyan v. The State

This appeal came up for hearing on the 24th day of January, 1991 and after hearing counsel for the appellant in oral argument and reading the briefs filed by the parties together with the record of proceedings and judgment, I found the appeal totally devoid of merit. I then dismissed the appeal, affirmed the decision of the Court of Appeal and reserved the reasons for my judgment till today. I now proceed to give the reason.
The appellant was arraigned before the High Court of Ogun State, Sagamu, and tried for the offence of the murder of Florence Fadeke Ogundiyan contrary to Section 319(1) of the Criminal Code Cap. 29 Vol. 11 Laws of Ogun State of Nigeria and convicted. She was then sentenced to death. The short facts of the case are as follows:
The appellant and the deceased were wives of Thomas Adewale Ogundiyan. They were married to him under customary law which allows polygamy. Apparently, the appellant and the deceased never enjoyed the peace of each other. They always had disagreements and enjoyed quarrelling with each other. However, they lived together with their husband in the same house and he seemed to have the situation under control until the 2nd day of December, 1986 when the situation got out of hand. Narrating the events, he said in his testimony before the court:

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“At about 6.30 a.m. on 16/12/86 the deceased and the accused person exchanged hot words on the cleaning of the toilet and bathroom which the accused person accused late Florence of not keeping clean. I intervened and pleaded with them not to quarrel on that as the children on holidays would clean it. I left home for work at about 7.30 a.m. By about 8.20 a.m., message reached me at petrol station at Isale Oko, Sagamu, that the deceased and the accused person were fighting. On getting home, I saw the accused person and queried her what would have led to the fighting and she replied that it was over the cleaning of the toilet and bathroom. When I asked her the whereabout of the deceased, she said she did not know but neighbours told me she had been rushed to the hospital. I raced to the hospital and it took time before I could see her. I saw her at around 10-11a.m., in the hospital bed. She was badly burnt. Her young daughter Bisi had her hair burnt and there were small burns on her face. She too was treated in the hospital… On getting home after seeing the deceased in hospital, Fadeke’s people came with policemen to my house.
On entering late Fadeke’s room, I saw kerosine on the floor. Smoke covered the house as well as Fadeke’s room when I first returned home. When I came back the second time with the police, we entered the room and we still saw kerosine on the floor. The entrance door curtain to late Fadeke’s room was burnt. There was a used tin of paint and kerosine was around it. There was kerosine on the mattress and everywhere in the room”.
Under cross-examination, he said
“I was not present during the fighting. The deceased later

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died of the injuries.”
Testifying on his findings at the autopsy, Dr. Babatunde, Josiah Olasode said:
“External examination of the corpse revealed burns over the anterior chest, i.e. the front of the body as well as on the back of the body. Both arms and thighs were also burnt and the anterior of the face. In fact, 70% of the body was burnt. The burns were deep and superficial.
From the findings, she died from kidney failure due to severe burns.”
The deceased died on the 22/12/86. But before she died, the police took a statement in anticipation of death (Dying Declaration) from her, Exhibit 10. The statement Exhibit 10 reads in part
“It was Elizabeth Ogundiyan (f) poured kerosine on me and set fire. Then I ran inside the bathroom where I opened the tap water and the fire set on me by Elizabeth Ogundiyan stopped and the said Elizabeth Ogundiyan (f) and the children and her sister were dancing…
When the trouble developed, I saw the suspect when she carried a bottle or tumbler then I ran inside my room. It was inside my room the suspect set me ablaze with fire after pouring kerosine on my body.”
But the appellant gave a different account of the incident to the police and to the court. In her statement to the police she said inter alia:
“Our husband leave us where we are abusing ourselves. The deceased Fadeke Ogundiyan was the first to hold my blouse that I worn and torn it, this is why the fight started. I started to remove my torn blouse, then I saw the deceased Fadeke Ogundiyan and came into our passage

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with small napkin in her hand burning, she was bringing it. Our children saw her first coming with small plastic container with some kerosine with napkin cloth of small child it was burning…When all the children shouted fire! fire! Because of that the deceased Fadeke Ogundiyan pour the kerosene on herself while the burning child napkin cloth caught the deceased cloth the fire started to burn its cloth, because of that she ran to the bathroom and pour water on her body.” It is clear from her statement to the Police (Exhibit 11A) that the deceased poured kerosine on herself and set herself ablaze either by accident, deliberately or negligently. In her testimony before the trial Court, the appellant maintained the same story but was more forth coming and said inter alia:
“I replied her that I would not flyaway like a bird. Our husband advised me to stop talking. He then left us for his petrol station. Immediately, Fadeke held my dress in the bathroom, dragged me out and tried to force me into her room but I resisted the pressure to enter her room. All of a sudden, the children shouted fire! fire!.
I looked back and I saw Fadeke carrying fire. I pushed her and she fell down. At the time, I saw her she held a burning nappy, i.e. Exhibits 7A-7C. She also held a small plastic bowl. On falling down, the plastic bowl dropped from her hand. The nappy also dropped. The kerosine splashed over her body and the burning nappy caught her silk dress. I pushed her in defence of myself. The incident occurred in the passage of our house. I did not at any time enter her room. When she rose up she ran out again. She ran into the bathroom and turned on the tap. She shouted that I had killed her.”

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She has before the Judge added that She pushed the deceased and she fell down.
The vital question then is “who set the deceased ablaze? Was it the appellant or the deceased herself. This vital question was answered by the learned trial Judge after reviewing the evidence on the point when she said
“I believe the case of the prosecution that it was the accused person who poured kerosene on the deceased and set her ablaze. I reject the evidence of the accused person as untrue.”
This is a very weighty finding, the effect of which establishes the elements required for the offence of murder since the deceased died from injuries caused by the burning.
The finding was confirmed by the Court of Appeal. Akpabio, J.C.A., in his judgment concurred in by Omololu-Thomas and Sulu-Gambari. JJ.C.A., said:
“I now come to the submission of learned counsel for the appellant that in the absence of P. W.5 who should have been the only eye witness of the incident, all the other evidence by the prosecution were circumstantial evidence and so should not he acted upon.
I beg to differ in this regard. Even after I have disregarded Exhibit III the supposed ‘Dying Declaration’ of the deceased, because no notice of it was given to the defence. I still find the remaining evidence, though circumstantial lead to one and only one conclusion, namely that it was the appellant who caused the death of the deceased. It is our law that “circumstantial evidence to

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ground a conviction must lead to only one conclusion and that is the guilt of the accused.” Popoola v. Commissioner of Police (1964) NMLR. 1″
The Court of Appeal dismissed the appeal and affirmed the decision of the High Court convicting the appellant sentencing her to death. The appellant being dissatisfied has further appealed to this Court. The three grounds of appeal set out in the notice of appeal are:
1. The Court of Appeal erred in law and on the facts when it failed to consider whether or not the learned trial Judge did properly weigh the evidence and make specific findings of fact on the issues raised before him.                
Particulars
    (a) The evidence of p.w.3, p.w.4 and p.w.7 on the issue of where the fight took place was not resolved;
(b) the appellant contended that the fight took place at the corridor while the complainants contended that it took place in the room;
(c) Issues as to who poured kerosine on the deceased and set her on fire was not adequately considered.
2. The Court of Appeal erred in law and on the facts when it failed to sufficiently consider the defences of provocation, accident and self-defence raised by the accused and thereby came to a wrong conclusion.
                   Particulars
(a) section 294, 24 and 286 of the Criminal Code (Cap. 29) Law of Ogun State of Nigeria provided that provocation, accident and self defence are available to an accused charged with a criminal offence;
(b) these provisions were not sufficiently considered or appreciated with regard to the legal implications of these

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defences vis-a-vis Exhibits 11 and 11A and the oral evidence of the appellant in her defence;
(c) appellant’s evidence of provocation, accident and self-defence “remain uncontroverted”
3. The Court of Appeal erred in law and on the fact when it admitted Exhibit 8 without the Yoruba versions of it being put in evidence thereby relying essentially on hearsay eyidence in arriving at the guilt of the accused.
                   Particulars
(a) Exhibit 8 was written in English while the appellant made her statement in Yoruba.
(b) 7 P.W. who took down Exhibit 8 does not speak or understand Yoruba language, equally, the appellant does not speak or understand English;
(c) 8th P.W. who was said to have interpreted the statement of the appellant from Yoruba into English admitted that there is no Yoruba version of the statement in existence;
(d) Having regard to the decision such as the Queen v. Zakwakwa Yarro (1960) 5 F.S.C. 12; (1960) SCNLR 36 and Zamba Shivera v. The State (1976) 3 S.C. 63. Exhibit 8 is clearly hearsay evidence, which the Court of Appeal should have rejected.”
The appellant formulated six purported issues for determination in this appeal. I say purported issues because the issue set down do not focus on the complaint in the grounds of appeal. They are crystals of the complaints and they have no separate existence from the grounds of appeal filed with or set out in the notice of appeal and the resolution of the issue in favour of the appellant must lead to the grant of the reliefs. The issues

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formulated by the appellant are as follows. The 1st issue reads:
1. Does the burden of proof shift in criminal cases particularly in a murder charge and if so to what extent?
This issue is hypothetical. It hangs in the air and is not linked with or tied to any of the grounds of appeal. Its resolution will not entitle the appellant to the relief.
The 2nd issue reads:
2. What is the standard of proof required in murder charge to secure a conviction?
This issue does not refer to any of the ground of appeal. It does not crystalise the complaint in any of the grounds of appeal. It is simply purely a hypothetical academic question the resolution of which does not attract any of the reliefs prayed for in the notice of appeal.
The 3rd issue reads:
3. Whether lower courts sufficiently considered the appellant’s Claim to “self-defence” and “accident” in the statement of defence.
This issue definitely derives from ground 2 of the ground of appeal.
The 4th issue reads:
4. Whether in the circumstances of this case it is the duty of the appellant to call all material witnesses in proof or disproof of her guilt or innocence.”
This issue has no foundation in the grounds of appeal. The answer to the question will not entitle the appellant to the relief prayed for.
The 5th issue reads:
5. Whether the lower courts were right in admitting Exhibit 8 in evidence and acting on it without the Yoruba version.

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This issue arises from and is reflected in ground 3.
The 6th issue reads:
6. Whether the Court of Appeal was right when it proceeded to consider the issues in the appeal before consideration of the grounds.
This issue has no premises in any of the grounds of appeal. It is not issue for determination in the appeal. It is not an issue for determination in the appeal as none of the ground raised the complaint.
In my view, looking at the grounds in their true bearing and having regard to the fact that the discharge of the onus of proof is the real complaint in all the three grounds of appeal, the sole issue for determination is whether the guilt of the appellant was established by the evidence adduced. The answer is not difficult to find. The findings of fact made by the learned trial Judge were affirmed by the Court of Appeal. Central among the findings is that the appellant poured kerosine on the deceased and set her ablaze and that she died from the injuries received within 7 days.
This is clear from the facts of the case set out earlier on in this judgment supported overwhelmingly by the evidence on record. The learned counsel for the appellant has not in his well-appointed arguments both at the oral hearing and in the appellant’s brief before this court been able to show any ground for interfering with the concurrent findings of the two courts below. Without any clear evidence of errors in law or fact leading to or occasioning miscarriage of justice, this Court will not interfere with the

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concurrent findings. It is settled law that there must be clear proof of error either of law or of fact on the record which has occasioned miscarriage of justice before the Supreme Court can upset or reverse concurrent findings of fact. See Iyaro v. The State (1988) 1 NWLR. (Part 69) 256. It is the same in civil appeals as well. Lokoyi v. Olojo (1983) 8 S.C. 61 at 68; (1983) 2 SCNLR 127.
In all criminal trials in this country and indeed in all common law jurisdictions, the burden or onus of proof is always on the prosecution. Except in very few statutory offence, this burden of proof can only be discharged by proving the guilt of the accused person beyond a reasonable doubt. Alonge v. Inspector General of Police (1959) 4 F.S.C. 203; (1959) SCNLR 516. This burden of proof never shifts and there is no onus on the accused person to prove his innocence under our law. An accused person is presumed to be innocent until his guilt of the offence is established. See section 33 (5) Constitution of the Federal Republic of Nigeria 1979 .
The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe v. The King 13 WACA 105 at 106. In that celebrated case, Verity, C.J. (Nigeria) delivering the judgment of the Court on the standard of proof said
“An illustration of the required standard of proof and degree of certainty in criminal trials we wish to refer to a portion of the charge to the jury of Martin, B. in Rex v. White 4 F & F 383 at 384 where the learned Baron said:-
‘In order to enable you to return a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your

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minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.’
We desire also to cite a passage which is to be found at page 81 of Best on Evidence (10th Edition) which very clearly sets out the distinction between the degree of proof necessary in civil and criminal trials respectively:-
There is no strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability due regard being had to the burden of proof, is a sufficient basis of decision but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. The serious consequences of an erroneous condemnation both to the accused and to society, the immeasurably greater evils which flow from it than from erroneous acquittal, have induced the laws of every wise and civilized nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt, ought to amount to a moral certainty, or as an eminent Judge expressed it,
‘such a moral certainty as convinces the minds of the tribunal; as reasonable men, beyond all reasonable doubt’.”
In the instant appeal, the defences of provocation, accident and self-defence were fully investigated by the High Court and justifiably rejected. They were also examined by the Court of Appeal and also rejected. On the facts found by the learned trial Judge and confirmed by the Court of Appeal, I found no basis for such defences.
The act of spraying the deceased with her clothes on with

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kerosine and selling her alight with the clothing on to burn is clear evidence of the appellant’s intention to afflict the deceased with severe burns, injury and the deceased having died from severe burn injuries, the appellant was properly convicted of murder by the learned trial Judge and sentenced to death and that decision was justifiably confirmed by the Court of Appeal. The burden of proof was fully discharged and the standard of proof certainly achieved.
It was for the above reasons that I dismissed the appeal and affirmed the decision of the Court of Appeal.