Medical evidence required to establish cause, manner of death – SC
IN THE SUPREME COURT OF NIGERIA ON FRIDAY, THE 12TH DAY OF FEBRUARY, 2016 SC.234/2012 LN-e-LR/2016/13 (SC) OTHER CITATIONS (2016) LPELR-40029(SC) BEFORE THEIR LORDSHIPS: WALTER SAMUEL NKANU ONNOGHEN (JSC), NWALI SYLVESTER NGWUTA (JSC), MARY UKAEGO PETER ODILI (JSC), OLUKAYODE ARIWOOLA (JSC), MUSA DATTIJO MUHAMMAD (JSC), […]
IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 12TH DAY OF FEBRUARY, 2016
SC.234/2012
LN-e-LR/2016/13 (SC)
OTHER CITATIONS
(2016) LPELR-40029(SC)
BEFORE THEIR LORDSHIPS:
WALTER SAMUEL NKANU ONNOGHEN (JSC),
NWALI SYLVESTER NGWUTA (JSC),
MARY UKAEGO PETER ODILI (JSC),
OLUKAYODE ARIWOOLA (JSC),
MUSA DATTIJO MUHAMMAD (JSC),
BETWEEN
OBASANJO EGHAREVBA Appellant(s)
AND
THE STATE Respondent(s)
JUDGMENT
(DELIVERED BY NWALI SYLVESTER NGWUTA, JSC)The appellant and one other person were tried at the High Court of Justice of Edo State of Nigeria, Benin Judicial Division, in two count information for conspiracy to murder punishable under Section 324, and murder punishable under Section 319, of the Criminal Code Cap. 48, Vol II Laws of Bendel State of Nigeria, 1976 now applicable to Edo State of Nigeria.
The prosecution’s case is that the appellant, his co-accused and two other inmates of the prison went to work in the prison’s garden. Each of them had a hoe. At his request, the appellant was taken to a source of water close by to drink water. He was led by the deceased Warden. Appellant hit the deceased in the head with his hoe and the deceased fell down screaming. The prisoners, one of whom was to testify at the trial as PW3, ran to the scene and helped the wounded warden to the prison’s compound from where he, the deceased, was taken to the University of Benin Teaching Hospital where he died about three weeks later.
The incident took place on 19th May 2001. Meanwhile appellant and his co-accused had escaped but were apprehended the night of the same date by members of a vigilante group. They were handed over to the police who charged them to court.
In the case of the appellant, the learned trial judge held:
“In the result, arising from all the analysis, I hold that the prosecution has proved the guilt of the 1st accused person beyond reasonable doubt as required by law. In the circumstances, I find the 1st accused person guilty of the murder of Lucky Ononike (m) and I hereby convict him accordingly.”
Accordingly the appellant was sentenced to death by hanging.
Dissatisfied with the judgment, and sentence of death passed on him, the appellant appealed to the Court of Appeal, Benin Division. That court on 23rd April 2012, dismissed the appeal and affirmed the judgment of the trial court.
Appellant further appealed to this court on two grounds from which he distilled the two issues reproduced below:
“1. Whether the Court of Appeal was right in affirming the decision of the trial court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.
2. Whether the learned Justices of the Court of Appeal were right in upholding the admission of the purported confessional statement of the appellant (Exhibit A) by the lower court and affirming the judgment and conviction of the appellant based on the said purported confessional statement.”
I will determine the appeal on the two issues raised by the appellant which were substantially adopted, but re-numbered, by the respondent. The same issues were raised and canvassed to no avail in the court below.
Ideally, in an appeal, issues are not formulated to coincide with the number of grounds of appeal. See Nwudenyi & Ors v. Aleke (1996) 4 NWLR (Pt.449) 349. It is better to raise an issue from a combination of grounds of appeal. The principle which governs the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be formulated into a single issue. See Labiyi v. Anretiola (1992) 10 SCNJ 1 at P.2.
The two issues raised from the two grounds of appeal can conveniently be argued as one. Be that as it may I will resolve the issues as raised and canvassed by learned counsel for the appellant.
Issue 1 queries the decision of the court below that the prosecution proved its case beyond reasonable doubt. Now, what is proof beyond reasonable doubt? The answer is provided in the case of K. Gopal Redding v. State of AP AIR 1979 SC 387 wherein the Indian Supreme Court held, inter alia:
“A reasonable doubt does not mean some light, airy, insubstantial doubt that may flip through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons.”
Before the court below learned counsel for the appellant contended that PW2, the Medical Doctor who performed the post mortem on the deceased said that the external wound sustained by the deceased had completely healed as at the time the deceased died. Their lordships of the court below had characterised the said submission as “half-truth”.
In murder cases, medical evidence is required to establish the cause of death and manner of death. The cause of death is medical question while the manner of death determines whether or not the injury which is the cause of death was or could have been self-inflicted. In my view, the PW2 properly determined the cause of death as the resultant effect of the head injury suffered by the deceased even though the wound itself had healed at the time he performed the post mortem on the body of the deceased.
The PW2 shied away from the second issue he was to determine – the manner of death. He said: “I do not know if the injury in this case was self-inflicted.” He did not have to know whether the injury he described as from which the deceased died was, or was not, self-inflicted. He was required to give an opinion based on his training and experience as a pathologist whether the injury he described could have been self-inflicted or not.
It is not his duty, however, to fix the appellant at the time and scene of the crime, He did not give eye-witness account of the incident. Those who commit violent crimes do not invite medical doctors to witness their misdeeds so that he the doctor can fix them at the scene of their crime. Learned counsel stated three elements the prosecution must prove to secure conviction in a murder charge:
(a) Death of the deceased; it is not in doubt that the body upon which the PW2 performed post mortem examination was that of the deceased, Lucky Ominike. This is clear from the totality of the evidence and in the circumstance a conviction cannot be voided because the person who identified the body to the doctor was not called.
It has been held severally that where the totality of the evidence of the prosecution shows consistently that the body on which a doctor performed a post mortem examination was that of the deceased, a separate witness on the issue of the deceased’s identity, though desirable, is not a necessity, see Enemoh v. State (1990) 4 NWLR (Pt.145) 459; Princewill v. State (1994) 6 NLR (Pt.353) 703 at 713 G-H.
(b) That it was the act or omission of the accused that caused the death of the deceased. The PW3 was the prosecution’s star witness. He was serving a term of imprisonment at the said prison facility with the appellant and his co- accused. The three of them were taken to work in the garden by the deceased warden. He was at the scene and heard the deceased screaming.
Appellant put identity of the PW3 in issue. If the PW3 was not who he claimed to be, then the appellant who knew that fact had the burden to prove his assertion by producing the real Friday Jatto or by any other means. It is a matter peculiarly within his own knowledge. See Section 140 of the Evidence Act, 2011.
He could have called Mrs Omoniyi he claimed he went to work for with two elderly men and two boys. He could have called any of the two elderly men or two boys to give evidence that he took them to work for Mrs. Omoniyi. The evidence that could have established that he went to work for Omoniyi with two elderly men and two boys was available but the appellant deliberately withheld it. This is a presumption that the evidence would have been fatal to his case if he had produced it. See Section 167 (d) Evidence Act 2011. See also Framo Nig Ltd v. Shaibu Daodu (1993) 3 NWLR (Pt.281) 372.
Every decision of a court is a finding of fact to which the appropriate law is applied. In this case, the trial court found the facts and applied the law and convicted the appellant. The court below reviewed the case and found no reason to disturb the decision of the trial court. Perhaps appellant’s counsel did not appreciate the fact that he was dealing with a concurrent findings of the two courts below.
In absence of a finding that the current finding of facts is either perverse or bedevilled with error in substantive or procedural law which if not corrected will lead to a miscarriage of justice, this court will not interfere even if the appellant had prayed the Court to do so. See Lokoyi & Anor v. Olojo (1983) 8 SC 61 at 68; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 23.
I accept the submission of the respondent that the case against the appellant was proved beyond reasonable doubt; bearing in mind that proof beyond reasonable doubt is not proof to mathematical certainty. I resolve issue one against the appellant.
Issue 2 is on admissibility of Exhibit 2, the statement credited to the appellant. When the learned prosecuting Counsel sought to tender the statement learned counsel for the appellant said:
“The 1st accused says he did not make the statement sought to be tendered in evidence. Voluntary is not an issue.”
Learned counsel for the appellant was right. The voluntariness of Exhibit A is not an issue in the appeal since the appellant denied having made it. The Trial Court did not have to engage in a trial within trial. See Emeka v. State (2001) FWLR (Pt.66) 632 ratio 5. The trial court was right to have admitted Exhibit A in evidence even though the appellant pleaded non est factum. See Queen v. Nwango Igine (1960) 5 JSC 55.
At the end of the trial the Trial court considered Exhibit A in the light of the prevailing circumstances and came to the conclusion:
“In the instant case, from the facts of the admission of the 1st accused person in Exhibit ‘A’ and the surrounding circumstances of the whole case… I am satisfied that the 1st accused person made Exhibit A…”
This is a finding of fact made by the trial court and endorsed by the court below. Appellant did not even attempt to prove perversity in the finding. I see no reason to disturb the finding that the appellant made the confessional statement, Exhibit A, and the said exhibit was rightly admitted in evidence by the trial court. The court below rightly upheld the admission of Exhibit A. I resolve the issue against the appellant.
Having resolved the two issues in this appeal against the appellant, I hold that the appeal is devoid of merit and accordingly it is hereby dismissed. I affirm the judgment of the court below.
Appeal dismissed.
I noted earlier in the judgment that learned counsel for the appellant referred to the learned Justice of the court below who wrote the leading judgment in the third person pronoun.
This is unacceptable. It violates the ethics of the noble profession. It is contemptuous.
On no account should a judicial officer be addressed or referred by pronouns. To deter further occurrence of this lapse and those who may imagine they can look down on/or talk down on the bench in this country, I hereby order learned counsel for the appellant, Emmanuel O. Achukwu, Esq to tender an unreserved apology, within 30 days from today, to the honourable justices who heard this appeal in the court below through the Hon. President of the Court of Appeal and copy the chief registrar of this court.
Representation
Emmanuel Achukwu (with him: B. C. Hezes and J. N. Okongwu), for appellant
and
Oluwole Iyamu (SG/PS), Edo State (with him V. U. Adeleye (Mrs), Assistant Director; R. Oaihimire (Mrs), SSC; I. Eribo (Mrs), SSC; M. O. Efuaga (Miss) SSC), for respondent.