The prosecution’s case was that on the 10th July, 1982 at about 1:30 p m at No. 10 Alayaki Court, Lagos, the Appellant had a row with one Ganiyu over a 10k coin. The row developed into a fight. During this fight one Wusamolu Alade called as P W 3 entered the house, she saw the Appellant and Ganiyu fighting., She also saw Iyabo, the sister of Ganiyu, now deceased, holding an empty bottle. The P W 3 pulled Iyabo aside and removed the empty bottle from her. P W 3 also separated the Appellant and Ganiyu, One Adamo Sule called as PW2 helped to separate the Appellant and Ganiyu P W 2 then took Ganiyu outside the house but still within the compound. Later on, the P W 2 heard the shout of fire! Fire! and ran back into the house. There she saw fire and smoke surging out from the room of Asiawu Memudu called as PW1. She PW2 then saw that the fire had engulfed iyabo Olowa and taju the son of memudu. They were both ablaze. What was it that set the deceased on fire? Memudu PW1 saw the Appellant carrying a burning stove and chasing Iyabo Olowa into her room. The Appellant then threw the burning stove at Iyabo who caught fire. The fire from the burning stove burnt the right foot of PW1 up to her ankle and seriously burnt P.W 1’s child Taju from head to foot. Monsurat another daughter of P.W1 was burnt around the month Iyabo and Taju whose burns were serious were taken to the General Hospital while Monsurat was treated in a private hospital. The following day, the 11th July, 1982 Iyabo Olowa died in the General Hospital.

It was Latifu Olowa P W 4 and father of the deceased who reported the incident to the Police. He also identified the corpse of Iyabo Olowa, deceased, to Ehidda Ranghen Koley called as P W 7 the Pathologist who performed the post mortem examination. The Pathologist saw fourth degree burn on the external part of the body of Iyabo Olowa, the deceased. He (7th P W) certified the causes of death to be shock due to burning.

AThe Appellant gave sworn evidence in his own defence. He called no further witness. He admitted the main outline of the prosecution’s case. He admitted that there was on that fatal day a row followed by a fight between Ganiyu, the brother of the deceased and himself. This row was sparked off by his discovery of a dirty 10 kobo on the ground which Iyabo the deceased claimed belonged to her brother, He (Appellant) then handed over the 10 kobo piece to Iyabo. This notwithstanding Ganiyu called him a thief. Then the quarrel started. This led to the fight. The Appellant conceded that Ganiyu and myself were then separated and Iyabo was then taken out of the compound. The only difference between the prosecution’s case and the defence appears to be what happened next. I will therefore reproduce the ipsissima verba of the Appellant.

“Iyabo later came back into the compound, carried a stove in front of her room and was about to throw the stove on me I pushed her back She slipped and fell into Ashiawu’s room. The stove exploded It was not burning stove. As the stove exploded I saw fire burning I got water and poured it on the fire and others came and helped to put the fire out.

The above is the gist of the Appellant’s defence

Thus from the evidence led on both sides, only one issues of fact emerged for the consideration of the trial judge.

Did the Appellant throw a burning stove at Iyabo who then caught fire and later died of shock due to burring as the prosecution contends?

or

Was it Iyabo who tried to throw the stove at the Appellant, who in self defence, pushed her back, causing her a slip and fall into Ashiawu’s room where the stove exploded?

To resolve the above solitary issue, the trial Court was bound to believe one side and disbelieve the other. Both sides could not have been speaking the truth on this contentious issue. How then did the trial Court deal with this issue of fact based on the credibility of the witnesses who testified? At pp 38/39 of the record, the learned trial judge observed and found.

“I have carefully considered the facts of this case as far as the evidence before me can allow. I have found it proved that there was no fight between the accused and the deceased I accept the evidence of the third prosecution witness that while the accused and Ganiyu were fighting the deceased stood by holding an empty bottle I believe also that this witness pulled the deceased aside, took the bottle from her and threw it away while he took Ganiyu outside. I accept the evidence of the PW1 that the accused chased the deceased into her room and threw the burning stove at her I reject the evidence of the accused as untrue and a calculated lie invented to get him out of the serious offence which resulted from his most atrocious, vicious act.”

Having made the above findings of fact, the learned trial judge then considered the defences open to the Appellant, namely Self Defence and accident. On Self Defence he observed at p 37 of the record:

“If the facts had been as stated by the accused a defence of self defence would have been considered.”

On the defence of Accident, the learned trial judge observed at p 37 of the record:

“The fire was surely not caused by accident but by the deliberate act of the accused.”

And at p 39 of the record, the learned Judge continued:

“In my opinion the death of the deceased was the direct result of the deliberate act of the accused in throwing the burning stove at her. Even if the accused did not intend to cause the death of Iyabo Olowa (deceased) there can be no doubt that when he threw the burning stove at her, as I believe he did, with the resultant wound described by the P W 7 he knew that it would cause grievous harm to her, it would be unreasonable to think otherwise. He must in my view have, or taken to have, intended the natural and probable consequences of his act……”

On the above findings, the learned trial judge found the Appellant guilty of the offence of murder charged.

The Appellant then appealed to the Court of Appeal, Lagos Division. Learned counsel for the Appellant. Mr. Adefala, filed three original grounds (p 43) and one additional ground (p 53) of appeal. He also filed a Brief of Argument After hearing counsel on both sides, the Court of Appeal (Ademola, Nnaemeka Agu and Kutigi, JJ CA) dismissed the Appellant’s appeal and upheld and confirmed the conviction and sentence of the trial Court.