SHAZALI V. THE STATE
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234
NIGERIAN SUPREME COURT CASES
[1988] 3 N.S.C.C.
SHAZALI V. THE STATE
SAHALATU SHAZALI
V
THE STATE
APPELLANT
RESPONDENT
SUIT NO. SC 53/1988
1
SUPREME COURT OF NIGERIA
NNAMANI,
J.S.C.
UWAIS,
J.S.C.
KARIBI-WHYTE,
J.S.C.
AGBAJE,
J.S.C.
CRAIG,
J.S.C.
9th December, 1988
Evidence - Corroboration - Sworn Evidence of a Child - S. 182 Evidence Act - Warning -
Confessions - S.27 Evidence Act - Prosecution's Burden of Proof - Corroboration -
Conduct of Accused.
Criminal Procedure - Trial - Defence - Failure to give evidence - Effects - Appellate court -
Error - Miscarriage of Justice. Circumstantial Evidence - Weight - Extra Judicial
Evidence - Effect.
Interpretation of Statutes - Penal Code S.57 - Duress as a defence - Discharge - Acquittal.
ISSUES:
3(
1.
Whether it is proper for a trial judge to rely on the sworn evidence of children of
tender years without warning himself as to the danger inherent in acting on such
evidence without corroboration.
2.
Under what circumstances will the conduct of an accused person amount to
corroboration.
3!
3.
What is a confessional Statement.
4.
What is the effect of the failure of an accused person to give Evidence in his or
her own defence.
5.
Whether the prosecution can be said to have discharged the burden on it where
4(
evidence against the accused is circumstantial.
6.
What is the test to be applied in determining the weight to be attached to a
confessional statement.
7.
Whether an error on the parts of the trial court and Court of Appeal with regards
to their pronouncements of incriminating statements made extra judicially as
4!
confessional statements, can be said to have occasioned any miscarriage of
justice.
8.
Whether under Section 57 of the Penal Code a defence of duress will result in the
discharge and acquittal of the accused person.
FACTS:
5(
The appellant was charged with and tried of the offence of culpable homicide
punishable with death under section 221(a) of the Penal Code and in the alternative
with the offence of mischief by fire with intent to destroy a house punishable under
section 337 of the Penal Code.
1
2'
2!
SHAZALI V. THE STATE
235
it was the prosecution's case that the appellant with members of her immediate
family returned to bed in their home and while other occupants were fast asleep, got
up from where she was sleeping in the sitting room with her husband and went into
the bedroom where her four children were sleeping, woke them up and told them to
5
leave the house and go outside because according to her, thieves had entered their
house. The children complied with this and while they were outside the house one
of them said he was feeling cold, the appellant led them back into the house but into
the Kitchen. While in the Kitchen the appellant came back a second time and told
them to go out of the Kitchan because thieves had set their house on fire. The child-
10
ren went out and there was fire in the house that night, which started from the bed-
room. The appellant's husband was all the while in the sitting room fast asleep, he
subsequently woke up and called out for the children thinking they were in the bed-
room. The eldest of the children (P.W 3 in this case) heard his father calling and ran
towards the door which was locked from outside and they were not able to open the
15
door. The appellant was there and she did not raise a finger to help her husband
out of the sitting room. They all raised an alarm which woke up their neighbours
from their sleep and by the time the door was forced open, the appellant's husband
was unconscious and taken to the hospital where he died not too long thereafter.
In connection with the incident, a report of burglary and arson by the burglars
20
was lodged with the police, who immediately started their own investigation's into
the report and could not come up with anything despite arresting some persons and
charging them to court, which charge was subsequently dropped because there was
no evidence of burglary at the scene of the incident and no incriminating evidence
against them.
25
The appellant subsequently became a suspect and statements under caution
were taken from her and it was her story that she was forced under threat of violence
to herself and to her children that she was forced to pour petrol inside the bedroom
and ignite it by the intruders to their house. And that the intruders saw to it that her
children were in save places before the fire was started.
30
At the trial, the prosecution relied on two statements of the appellants and the
evidence of P.W.3 and P.W.4, the appellants children aged 11 and 13 respectively.
Both of them gave sworn evidence of the fact that their parents were not on good
terms on the night of the incident before going to bed and how their mother woke
them up and how they obeyed her even though they did not see anybody or heard
35
strange noises and how their mother did not help the eldest son to save their father
who was trapped in the sitting room. The appellant did not say anything in her own
defence but rested her case on the prosecution's case. The trial judge after con-
sidering the evidence held that the appellants two statements to the Police con-
stituted confessional statements, found her guilty on the charge of culpable homicide
40
punishable with death based on the evidence as adduced by the prosecution and
sentenced her to death.
The appellant appealed against this judgment to the Court of Appeal unsuccess-
fully. She further appealed to the Supreme Court contending that the Court of Ap-
peal
inter alia
erred by holding that evidence adduced by the prosecution does not
45
lead itself to equivocation and that there was nothing in the conduct of the appellant
on the fateful night which is consistent with innocence as regards the commission
of the offence, all points to and are consistent with her guilt.
HELD:
1.
That under section 182 Evidence Act a person cannot be convicted on the
50
unsworn evidence of a child cf tender years without corroboration.
State v.
Akpan.
Where the evidence of children of tender years is in respect of an accuser
even if sworn, corroboration is generally required. It is necessary for a court to
warn itself of the danger of acting on the sworn evidence of children of tender
age. In the instant case however, this will be only of academic interest because
on the facts of this case the evidence of the children of the appellant is such that
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