AKINFE V. THE STATE

• Pages: 313-334

AKINFE V. THE STATE



313

KAWU, J.S.C.:

After hearing arguments of counsel in this appeal on 4th day of May,

1988, we allowed the appeal and directed the retrial of the case before another Judge

of the High Court of Kano State. We then indicated that we would, today, give our

reason for judgment.

5





I have had the advantage of reading in draft the lead 'Reason For Judgment' just

delivered by my learned brother, Belgore, J.S.C. I am in complete agreement with

those reasons which I adopt as mine. I abide by the orders made in the said Rea-

sons For Judgment including the order as to costs.

0



AGBAJE, J.S.C.:

On 4th May, 1988 I allowed this appeal and ordered a retrial. I

reserved my reasons for doing so till today. I now give them.

I have had the advantage of reading in draft the lead reasons for judgment of my

learned brother Belgore, J.S.C. I agree with his reasoning and I adopt it as mine.

Appeal Allowed

5



Retrial Ordered.

!O



AKINFE V. THE STATE

GRACE AKINFE



APPELLANT

V

?5 THE STATE



RESPONDENT

SUIT NO. SC 172/1987

SUPREME COURT OF NIGERIA

ESO,



J.S.C.

NNAMANI,



J.S.C.

30



KARI BI-WHYTE,



J.S.C.

KAWU,



J.S.C.

NNAEMEKA-AGU, J.S.C.

8th July, 1988

;5

Criminal Law - Murder - Causation - Killing by poison - Proof of actus rests failure to

establish actual cause of death - Medical evidence - Non-tender of - Effect.

Criminal Procedure - Trials - Judges - Power to call or recall witnesses. S.200, C P.A. - Fair

hearing-Descending into arena of conflict - Going beyond accepted lirnits in questioning

- Apparent bias- mistrial - Meaning - Effect - When retrial may he ordered - Principles

in Abodundun v. The Queen - When retrial may be unjust.

Appeals - Findings of fact - When appellate cowl may interfere with findings of lower court.

Evidence - Examination of witnesses - Power of Judge to put questions - Section 222.

Evidence Act - Limitations and scope - Questions tending to bias - Questions tending

to destroy the image of Judge as umpire - Effect - Standard of Proof - Criminal cases -

Proof establishing mere probability -Causation in murder cases - Sufficiency -

Confessional Statements - Voluntariness - Failure by Judge to consider conflicting

circumstances and improbabilities - Evahtation of Evidence - Facts tending to show

non-evaluation-reason for interference by appellate court - Presuniptions - Withholding

evidence - Section 148(d) Evidence Act - Non production of medical report - Effect -

Dying Declaration - Status of - Adnzissibility - Hearsay evidence.

0

5

314



NIGERIAN SUPREME COURT CASES

[1988] 2 N.S.C.C.

ISSUES:

1.

What is the role of a Judge in an adversary system of criminal adjudication?

2.

What are the scope and limitations of sections 222 of the Evidence Act and 200

of the Criminal Procedure Act, under which a judge has powers to put questions

to accused persons or their witnesses.

3.

Whether section 222 and 200 of the Evidence Act and Criminal Procedure Act

respectively, constitute an unbridled licence to a trial Judge to assume the role

of prosecution and Judge in one.

4.

Whether the requisite standard of proof in criminal cases is discharged where the

evidence adduced by the prosecution. at best, only creates a mere probability

that the accused could have committed the offence alleged.

5.

Where, in an indictment for murder, the accused is said to have caused the death

of the deceased by poisoning, is it sufficient for the prosecution merely to prove

that the accused had administered the alleged poison to the deceased.

6.

Whether medical evidence is essential in murder cases.

7.

Under what circumstances will the presumption of withholding evidence under

section 148(d), of the Evidence Act, apply to a case?

8.

Whether a statement, neither made in

extrernis

nor in a state of settled, hopeless

expectation of death. can be admissible in evidence through a third party, to

prove a fact in issue.

9.

Whether the principle that a trial court is master of its own findings of fact, applies

in a situation where it is clear that such trial court had not properly evaluated the

evidence before it.

10.

What is the effect of a mistrial?

11.

What will be the deciding factor in ordering a retrial where there has been a

mistrial?

FACTS:

The appellant was convicted as charged on an indictment for murder in the High

Court of Ondo State (Akure Judicial Division). The facts on which she was arraigned

were as follows:- The deceased was the wife of one Akinfe to whom the appellant

was also married. In 1984, Akinfe caused certain native medicinal preparations to

be concocted for the deceased who was then in the family way. One of the concoc-

tions was put in a Schnapps bottle, and for some 30 days, the deceased continued

to take out of it. On 30th December, 1984, after taking the native concoction, the

deceased took ill and began to vomit. She said that the medicine in the schnapps

bottle had caused her trouble. By administering some further concoctions to the

deceased, the vomitting was stopped and the following day. the deceased was taken

to the Idanre Hospital, but was transferred to the State Hospital Akure where she

died five days from the day she first took ill. The appellant was taken to a diviner

(P.W.3) to whom she was alleged to have admitted causing the deceased's death

by putting some Gamalin 20 in the native concoction (in the schnapp bottle) which

the deceased was taking. Both the appellant and her husband were then suspect.

At the Police station, appellant denied putting anything in the deceased's medicine.

Appellant made subsequent statements to the police which the prosecution re-

garded as confessional, but which she denied in court. Although an autopsy had

been performed on the deceased the result was not tendered in evidence and the

doctor who performed the autopsy had not been called to testify. There was no ex-

planation for the failure. However, the trial Judge, in convicting the appellant, relied

heavily on the conclusions he drew from cross-examining the appellant during trial

.

The appellant in her appeal to the Court of Appeal complained

inter alia

that the trial

Judge, having abondoned his impartial role as an umpire, had entered into the arena

of conflict and occasioned a miscarriage of justice, that the alleged confessional

statement on which her conviction was founded had been extracted by torture by