The prosecution’s case was that on 12/3/90 one Chikodi Adibe (PW2) a girl of some 16 years of age, was running an errand for the deceased. Chikodi at that time lived with the deceased and her husband (pw1). In fact she was the niece of PW1, PW2’s route lay past the compound of the accused persons. As she passed, by the 6th accused (2nd appellant), who had for sometime been lusting after her, pounced on her and pushed her into a room with the single minded purpose of gratifying his lust. The 1st accused (1st appellant) was present and participated in the attempt to rape the girl. They shut the door and the 1st accused put his back against it to prevent anybody from pushing it open from the outside. As the lecherous duo were almost succeeding in their design, having torn the girl’s blouse, brazier and pant, the girl ululated in alarm, bringing people, including the deceased, running to the scene. The deceased eventually managed to force the door open. As she stepped into the room, the 1st accused planted a vicious kick in her solar plexus with his right foot. This brought her down in front of the door where she lay in a faint. P W1, the deceased’s husband, soon joined the girl in trying to revive the deceased. As they were about this task the 4th and 5th accused and another person accused were shouting at them to let the deceased die. The 2nd accused then attacked PW1 and PW2 succeeded in removing the stricken deceased, who at the time of the incident was heavy with child, to a maternity clinic. This was, however, not before the 3rd accused had taunted them with the statement that even if the deceased died money would see them (the accused persons) in the clear. Four days later, on 16/3/90, the deceased was referred from the clinic, to which she had been taken, to a community hospital. She was discharged that same day and advised to be reporting as an outpatient. She, according to PW2, resumed her normal business of cooking and selling food. She did this until 22/3/90 when, again, according to Pw2, she “developed unsavoury symptoms again and she was taken back to the community hospital”. The following day 23/3/90 she died. Her body was moved to the general hospital where, on 25/3/90, PW5 performed post mortem examination on it. During examination he observed profuse bleeding through the vagina with blood clot and stains all over the body. He observed also that the deceased was about 9 months pregnant. He observed evidence both externally and internally, when he opened up her abdomen, consistent with that part of her body having been violently and heavily impacted upon by a blunt object. The impact was such that it fractured part of the skull of the male foetus resident in the womb at the time. In his opinion, the death of the deceased resulted from haemorrhagic shock arising from the impact on the abdomen. The foetus also did as a result of the hemorrhaging.

Only the 1st accused testified and called a witness. His case was that he was not present when the 6th accused allegedly attempted to rape P .W 2 or when the deceased was allegedly kicked in the abdomen. He said he was at the house of D. W 1 watching a match on the television. At the time he arrived a fight appeared to have taken place for, he saw his mother prone on the ground seemingly unconscious. He reported the incident at the police station. DW2, at whose house he said he was watching TV, testified that the 1st accused watched TV in his house between 7 pm and 11p.m. that day.

After hearing the evidence of the 6 prosecution witnesses and the 2 for the defense the learned judge, Oyudo, J, delivered his judgment on 15/10/94. With some reluctance he discharged and acquitted the 2nd – 5th accused. He however convicted the 1st and 6th accused as charged and sentenced to death.

The appellants, dissatisfied, appealed to the Court of Appeal against their conviction and sentence.