Ayo Gabriel V. The State (1989)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.S.C.
The appellant, Ayo Gabriel, was found guilty of murder after a trial at Owo in the High Court of Ondo State and sentenced to death. His appeal to the Court of Appeal, Benin Branch was dismissed.
The accused was the husband of the deceased and both lived together at Irugbe Street, Owo in the house of Chief Bolade Arala. The couple were in the habit of fighting. On 23rd day of November, 1983, the landlord, Chief Arala (P.W.2), arrived at the house and saw a large crowd at the door of the accused. That was at about 10 p.m.
The appellant and his wife had been fighting all day with their door locked. The P.W.2 on getting to appellant’s door knocked and appealed to the appellant to open the door. All along, the deceased was shouting for help. Instead of opening his door for P.W.2, the appellant shouted a threat: that if the P.W.2 did not leave his door, he would come out with his matchet to decapitate him (P.W.2). A report was therefore lodged with the police who never came that night. In the meantime, P.W.2 organised a vigil round the house so that the appellant would not come out, or if he came out, he would not leave the house. When the police called in the morning, the appellant was found in his room and the corpse of his wife was lying on the floor.
The doctor who examined the corpse found deep lacerations on the skull and bleeding from the nostrils. He certified probable causes of death as “beating and external bleeding”. The lacerations caused excessive bleeding and these injuries could have been inflicted with sharp object. The appellant made many voluntary statements to the police; in one he said he never fought with his wife, rather his wife (deceased) fought with Monday Bolade (P.W.3).
He claimed in another that he only saw the wounds on the deceased and he attempted to treat the wounds. His evidence on oath was another contradiction of his previous voluntary statements. The trial court treated the statements and the appellant’s evidence as unreliable, and rightly so in the face of the contradictions. The Court of Appeal could not do anything to help the hapless defence of the appellant.
On appeal to this court, it was contended that the deceased might have died as a result of a fall during a fight; that is to say, she died accidentally. This is a belated defence as it was neither raised at the trial court nor in the Court of Appeal. The appeal court will not entertain a new issue not raised in the trial court, except question of law or Constitution and only with leave of court. There was no issue of accident canvassed at the trial court and was never raised at the Court of Appeal. See Oredoyin v. Arowolo (1989) 4 N.W.L.R. (Pt. 114) 172; Fadiora v. Gbadebo (1978) 3S.C. 219; Shonekan v. Smith (1964) N.M.L.R. 59
The issue of contradiction in the evidence of the medical doctor has been over-blown by learned counsel for the appellant, Mrs. Ugboma. The doctor wrote a report in which he indicated finding deep lacerations on the skull which caused severe loss of blood, resulting in the death of the deceased. In his evidence in court, he in fact never departed from this assertion but his further opinion was elucidated in cross-examination, whereby he opined that sharp object could cause such injuries and that the injuries could not be self-inflicted.
He also testified that a fall against a sharp object could inflict such injuries. But it was never the case of the appellant that the deceased fell on any sharp object. No weapon or sharp object was tendered in court. Certainly there was no contradiction to bring this case within the sphere of the decision in Joshua v. The Queen (1964) 1 All N.L.R. 1 and 3.
The peculiar nature of this case is that the appellant lied all along and this never helped his case. There was overwhelming evidence that he was alone with his wife in his room. Also evidence was clear that violence was going on between him and his wife (deceased) in his room and when she was shouting for help, the appellant refused to open the door he locked from inside. When his landlord, P.W.2, appealed to him to open the door, he refused and threatened P.W.2 with death should he force open the door. Nobody else entered the room up to the next morning when police got to the scene and found the appellant and the corpse of his wife. It was he (appellant) that had explanation to make as to what killed his wife. He has not explained what caused the fatal injuries. The injuries could not be self-inflicted. If they were caused by accident, the appellant never proferred evidence of any. There was no evidence of provocation or of self-defence, whose burden of proof would normally be on the appellant, as in R v. Igwe, IV W.A.C.A. 117; R v. Igiri XII W.A.C.A. 877. The appellant on all the evidence before the court, was all along a master of his own mind and action that I find no mitigating circumstance to interfere with the decision of learned Justices of Court of Appeal.
I therefore dismiss this appeal as totally lacking in merit and uphold the decision of the Court of Appeal which affirmed the conviction and sentence of death passed by the trial court.
NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just delivered by my learned brother, BELGORE, J.S.C., and I agree with him that this appeal must fail.
For purposes of this concurring opinion, I shall adopt my learned brother’s resume of the facts of this tragic case. I shall only mention such of the facts as I need for this comment. I think it is also necessary to commend counsel to both the appellant and the respondent for their well written briefs of argument as well as their lively argument before us.
The appellant’s counsel, Mrs. Ugboma, in her brief of argument identified the following questions or issues as arising for determination of this appeal:-
- Whether the appellant was rightly convicted of murder on the facts of this case.
- Whether the learned Justices of the Court of Appeal were right in upholding the trial court’s outright rejection of the appellant’s evidence as a pack of lies in a case of murder without considering the defence available to him considering the circumstances of the case.
- Whether the prosecution had proved the offence of murder beyond reasonable doubt considering the evidence before the court that appellant was engaged in a fight with his wife.”
Issues I and 3 if taken together would go to the contention of the appellant’s counsel that the evidence, such as there was, was not sufficient to support the conviction of the appellant. It is true that there was no direct evidence of the killing of the deceased. The case turned on circumstantial evidence. It is also correct as appellant’s counsel contended that the circumstantial evidence which would support conviction must be unequivocal and positive; it must point irresistibly at the guilt of the accused, besides, there must be no other co-existing circumstances throwing doubt on the inference that the accused and no other person is the guilty party. These principles have been distilled from several decisions of the courts over the years. See Teper v. The Queen (1952) A.C. 480; Stephen Ukorah v. State (1977) 4 S.C. 167; Valentine Adie v. The State (1980) 1/2 S.C. 116; Joseph Lori v. The State (1980) 8-11 S.C. 81, 86 etc.
The question is then this, did the evidence in this case not reach that standard Both the Court of Appeal and the trial court thought it did. The evidence which both courts accepted was that the appellant and his wife were always fighting. On the fateful day, P. W.3 heard sounds of fighting between appellant and his wife and reported to his father, P.W.2. According to P.W.3, the deceased wife was shouting for help. Apparently the appellant had locked the door of his room, so that the fighting was going on in the locked room. P.W.2 requested the appellant to open the door of his room, whereupon (and this evidence has been accepted by the two courts) the appellant threatened to cut off the P.W.2’s head if he dared come near. It is significant to note the nature of the threat. With what was the appellant to cut off P. W.2’s head This question is apposite in the face of the appellant counsel’s submission that no matchet was found in the appellant’s room. According to the evidence, to go further, the P.W.2 arranged for the villagers to keep vigil all through the night around appellant’s room. In the morning when the P.W.2 and the police entered the appellant’s room, the appellant was alive but his wife was lying on the floor dead facing upwards. Only a small cloth was used to cover her private part. Is it not open to one to infer that the appellant killed his wife even from these circumstances I certainly think so.
I shall deal with two matters which appellant’s counsel strenuously argued provide the co-existing circumstances that weaken the certainty of the circumstantial evidence. The first is the possibility that the deceased died as a result of injuries obtained from a fall during the fight – i.e. the defence of accident. It certainly is the law that the trial court is not limited to considering only the defences brought forward by an accused person. A trial court is to consider all defences that could be available to an accused person from the evidence before the court. The question then is, was there evidence from which a defence of accident could be available The only issue of accident arose from the second statement of the appellant to the police Exhibit C in which he said,
“At this stage, she held me and I started to beg her. This happened around 10 p.m., when she did not listen to me, I wanted to escape from her to run away. Then she took an object in order to hit me with it but I did not know the object as there was no light. When she wanted to pursue me, she fell at the entrance of our room. I later came back and lighted a candle during which I saw the deceased sitting down and I observed that she had sustained injury on the face. Then I carried her and I used hot water to forment her injury. Then I put her on a mat and went out to look for a Taxi cab but I could not get anyone as it was already in the night. I bought three tins of milk for her and she took one. The following morning at about 6.30 a.m., she died. I did not fight with my late wife Imme Ayo on 23/11/83 and I did not lock my doors against to enable me to beat her up.”
Apart from the fact that the trial Judge believed the witnesses who testified that the appellant locked his doors and refused to open them, this statement is at variance with an earlier statement to the police and the appellant’s testimony in court. In the earlier statement Exhibit B, he claimed that the deceased attacked him as he came back home in the evening of the fateful day. He claimed that he had previously observed that the deceased was sick. During the attack he referred to, he said that the deceased used some thing to knock him on the head. Later on in the statement, he said-
“during the scuffle the whole yard tenant came to the scene but nobody agreed to separate us. Then on 24/11/83 at about 05.00 hours after we later separated ourselves as she swept the frontage of my house. After she swept the frontage she went inside and lay on our bed and she started to sweat. I then gave her one tin of milk to drink (and) later she died.”
There is nothing here about a fall etc.
Again in his testimony in court his story seemed to suggest that the struggle was between his wife and P.W.3. His words were:
“As soon as my wife walked out of the room the P.W.3 came out of his room. Thereafter my wife pursued the P. W.3 and grabbed him. I appealed to neighbours to help me separate them On my return home, I entered my room. My wife managed to get out of the crowd, entered the room where I was and held me, that she would not allow me to go out, that if I went out, that I would go and spend the money on me on buying drink…………………………………..On reaching the entrance of my apartment, I met my landlord (i.e. P.W.2). He was talking to my wife. He had a lantern in his hand. I asked from him as to what was happening. He told me that my wife claimed that she fell down. I went near her and asked her what was it all about. She started weeping.”
The difference between this last bit and what the P.W.2 said in evidence which was accepted by the two lower courts, is so obvious. In the face of this divergence between the appellant’s testimony and his statements to the police, and indeed the contradictory nature of the statements themselves, both the statements and the appellant’s testimony were unreliable and had to be disregarded. The learned trial Judge rightly disbelieved and rejected them. See Wasari Ummani v. The State (1988) 2 S.C.N.J. 59,67,68; (1988) 1 N.W.L.R. (Pt. 70) 274. There was, therefore, in my view no evidence on which any defence of accident could have availed the appellant.
The other matter is the question of the medical evidence in the case of Appellant’s counsel, relying on the contradictory nature of the evidence of the Doctor P.W.1., claimed that the prosecution did not establish the cause of death as it was its duty to do. She referred to the cases of Frank Onyenankeya v. The State (1964) N.M.L.R. 34, Phillip Omogodo v. The State (1981) 5 S.C. 5 etc. The medical evidence in this case was clearly unsatisfactory. I cannot myself see the need to tender the medical report Exhibit A when the Doctor who made it was available and indeed gave oral testimony. See Owenso v. Agbehin (1967) N.M.L.R. 129. In Exhibit A, P.W.1 found “lacerations of the head and face. Bleeding externally, through the nostrils ….. I certify the cause of death in my opinion to be beating to death and external bleeding.” In his testimony in court he said, “I found some deep lacerations on the head and the face of the deceased woman. There was profuse bleeding externally from the deep lacerations and the nostrils. The lacerations were caused by some sharp object. The injuries or lacerations could not have been self inflicted.” This time he did not proffer any opinion as to the cause of death.
I cannot myself see any contradiction between the medical report and the Doctor’s oral testimony except that the Doctor in his oral testimony did not state the cause of death, and he now stated that the lacerations were caused by a sharp object. I have already stated that the medical report ought not to have been admitted in evidence but I do agree with the Court of Appeal that its admission and use by the learned trial Judge did not occasion a miscarriage of justice. Rather than see a contradiction, I see the Doctor’s oral testimony as amplification of his findings. He now stated that the lacerations he found on the head and face of the deceased could have been caused by a sharp object and they could not have been self inflicted. Admittedly, as mentioned earlier, the Doctor in his oral testimony did not mention the cause of death. I too agree with the Court of Appeal that this could be inferred from the nature of the injuries described by the Doctor – deep lacerations in the head and face, profuse external bleeding from the deep lacerations and the nostrils, injuries not self inflicted. This would then be put together with the other evidence in the case that during the whole period of the encounter from the night to the morning, she was found dead, the deceased was alone with the appellant behind closed and locked doors. In any case, even if one discounted the medical evidence entirely, cause of death could still be inferred from the circumstances. The appellant and his wife are fighting all night behind doors closed and locked by appellant; the deceased is shouting for help but appellant refuses to open the door to his room; in the morning the deceased is dead and the appellant alive. See Kato Dan Adamu v. Kana Native Authority (1956) 1 F.S.C. 25; [1956] SCNLR 65; Akeem Josiah Essien v. The State (1984) 3 S.C. at 14.
For all these reasons, I agree with Mrs. Fasanya and I am satisfied that this appeal lacks merit and I hereby dismiss it. The conviction and sentence passed on the appellant are further affirmed.
KAWU, J.S.C.: I have had the privilege of reading in draft the lead judgment of my learned brother, Belgore, J.S.C., which has just been delivered.
I am in complete agreement with his reasoning and also with his conclusion that the appeal is absolutely lacking in merit and should be dismissed. The appeal is hereby dismissed and the conviction of the appellant and the sentence of death passed on him are hereby affirmed.
NNAEMEKA-AGU, J.S.C.: I have had a preview of the judgment of my learned brother, Belgore, J.S.C., in this appeal and agree with him that the appeal ought to be dismissed as unmeritorious.
After carefully reading the grounds of appeal filed on behalf of the appellant as well as the briefs of counsel on both sides and listening to the argument of counsel, it appears to me that the most crucial issues relate to the medical evidence before the court. Was the autopsy report, Exh. A., wrongly admitted in evidence Did it contradict the oral testimony of the doctor, Dr. Olu Akinwe (P.W.1) of St. Louis Hospital, Owo If it did, what is the effect If it did not, do Exh. A and the oral testimony of P.W.1 prove the cause of death of the deceased Was it proved that the appellant was responsible for the deceased’s death
I regard the above questions as decisive of this appeal because I have not been persuaded that the concurrent findings of fact by the two lower courts have been successfully impugned in any way. In a nutshell, those facts are that in the night of the 23rd of November, 1983. at No. 43 Irugbe Street. Owo, the appellant, as had often happened before, locked his wife, Imme Ayo (now deceased) inside their apartment and both of them were engaged in a fight. The noise attracted P.W.2, P.W.3, and P.W4, among others, to the scene. They tried to enter the apartment, but the appellant would not allow them.
Their landlord (P.W.2) called on the appellant to open the door, but the latter warned him that if he dared to enter the apartment, he (appellant) would decapitate P.W.2. A report to the police did not succeed in bringing in the police that night. But the landlord and co-tenants of the appellant and the deceased kept vigil till the following day when the police eventually arrived. When the door was opened by the appellant they found the dead body of the deceased lying on the floor with her face upwards while the appellant stood looking at the corpse.
In his first statement, Exh. A, in one breath the appellant stated it was the deceased who beat him: he did not beat her back and did not know what killed her. In another he admitted he had a scuffle with her for which their co-tenants gathered. They eventually separated themselves. But she later died. In his second statement, Exh. C, made on the 10th of December, 1983, he stated that while both of them were quarrelling over money at about 10 p.m., on 23rd November, 1983, the deceased wanted to hit him, in the dark, with an object but accidentally fell near the entrance of their house and sustained an injury in the face. He gave her first aid treatment with a hot-water bottle. She died at about 6.30 a.m., the following morning. He denied beating her up in the night and locking out his landlord and co-tenants.
At the trial, the appellant stated that the deceased sustained the injuries when he (appellant) was away from their house. When he returned and saw the injuries, he gave her some first aid treatment. He again went away from the house and on his return he found his wife dead.
The learned trial Judge found that the appellant’s evidence in court was inconsistent with what he said in his statement, Exhs. B and C. He therefore treated his evidence as unreliable. He accepted the evidence offered by the prosecution, convicted the appellant of murder and sentenced him accordingly. No issue is raised in this appeal on the learned Judge treating the appellant’s case as unreliable. The main issue, therefore, is whether the prosecution proved its case.
I think it is well settled that the duty of the prosecution in a case like this is to prove not that the act of the appellant could have caused the death of the deceased but that it did. In doing so on the facts of this case, the prosecution has an option. They could ask the court to draw the inference that on the facts stated above, the appellant killed his wife (see Kato Dan Adamu v. Kana Native Authority (1956) 1 F.S.C. 25; [1956] SCNLR 65. This first option arises from the settled principle that medical evidence is not always a sine qua non for proof of cause of death in a case of murder: see the case of Bakuri (1965) or, as there was no eye witness to the act of killing, they could use the nature of the wound as proved by medical evidence to show that the appellant killed the deceased. The prosecution appeared to have adopted this latter option in this case. Having done so, I do not think it is still open to them to go back on it and argue that inference of cause of death could be drawn from other circumstances, as the learned counsel for the respondent has urged on us. This to my mind appears to be the necessary inference from the decision of this court in the case of Frank Onyenankeya v. The State (1964) N.M.L.R. 34. It appears to me reasonable to assume that, particularly in a capital case such as this, the defence ought to have due notice of the nature of the case it is to meet.
On the medical evidence in this case, I must note that although learned counsel for the appellant raised the question of admissibility of the medical report, Exh. A, in particulars (b) of ground 1 of the appellant’s grounds of appeal, no argument was advanced on its admissibility. Rather the main plank in the argument was that P.W.1’s oral evidence in court contradicted the report. As I am satisfied that, apart from the fact that no argument was advanced on admissibility, no miscarriage of justice resulted when the witness who made the report also testified in court. I say no more about it. I shall treat the question of admissibility as having been abandoned.
As to whether Exh. A contradicted the oral testimony, I note that in Exh. A the doctor stated his findings during the autopsy thus:
“Laceration of the head and face. Bleeding externally through the nostrils. I certify the cause of death in my opinion to be Beating to death and external bleeding.”
In court, he testified as follows:
“On examination of the corpse, I found some deep lacerations on the head and the face of the deceased woman. There was profuse bleeding externally from the deep lacerations and the nostrils. The lacerations were caused by some sharp object. The injuries or lacerations could not have been self-inflicted.”
It appears to me that the only significant difference between the above testimony and Exhibit A is that in the latter, no opinion was advanced as to the nature of the weapon used and also there was no opinion expressed as to whether it could have been self-inflicted. In my opinion, it would not be right to describe these two differences which obviously resulted from the nature of the questions put to the witness in court as “contradictions”, as learned counsel for the appellant has done. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. It is useful to bear in mind the fact that the word “contradict” comes from two Latin words – contra (opposite) and dicere (to say).
Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than, what the other piece of evidence says or contains some minor differences in details. I think the law also looks at the two different situations differently. If a witness gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable: see Onubogu v. The State (1974) 9 S.C. 1. On the other hand, minor discrepancies between a precious written statement and subsequent oral testimony expected do not destroy the credibility of the witness. Indeed when such do not occur, it may lead to a suspicion that the witness has been tutored. I do not agree with learned counsel for the appellant that the oral testimony of P.W.1 in court contradicts his report, Exh. A.
On the final question whether the prosecution proved the cause of death of the deceased and that the appellant was responsible, I have no difficulty in agreeing that they did. On accepted evidence, the appellant locked up the deceased in their apartment and they, being alone in the room, were engaged in a fight, the deceased’s screaming for help attracted their co-tenants and landlord to the scene; appellant refused to open the door when appealed to by his co-tenants and landlord; rather he threatened to decapitate anybody who dared enter; the following morning when he opened the door the deceased was found dead in a pool of blood; she had lacerations in the head and face which were certified to be the cause of the bleeding which led to her death; the injuries were also certified not to have been self-inflicted. In my view these facts clearly support the inference that the appellant murdered his wife.
I therefore agree with my learned brother, Belgore, J.S.C., that the appeal ought to be dismissed. I hereby dismiss it with the same orders as have been made in the lead judgment.
SC.20/1989
