Baby Justina Egbeyom V. The State (2000)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The appellant as accused was arraigned upon an information before Ibadan High Court in Ibadan Judicial division of Oyo State High Court and charged with the murder of Mrs. Nike Oyebola on or about 18th May, 1993 at Ibadan, Ibadan Judicial division aforesaid contrary to and punishable under Section 319 of the Criminal Code Cap 30 Vol. II Laws of Oyo State of Nigeria 1978.

The matter proceeded to trial wherein in establishing its case the prosecution called seven witnesses. Upon completion of prosecution’s case learned counsel for the appellant made a submission of no case to answer. After a considered ruling the learned Trial Judge overruled the no case submission, thereafter appellant testified for herself and called a medical doctor as her witness.

Learned counsel to the appellant and the prosecution addressed the lower court after the completion of appellant’s defence each referred to legal authorities to buttress their submissions.

In a considered judgment delivered on the 31st day of January, 1996 the learned trial Judge convicted the appellant of the offence of murder of Mrs. Nike Oyebola on 18th May, 1993 and sentenced her to death by hanging. Being dissatisfied with the said judgment gave rise to lodgment of an appeal to this court. The conclusion of arguments, by appellant’s counsel and respondent’s counsel on 16th November, 1999 in this appeal gave rise to this judgment.

Originally appellant in her notice of appeal filed the omnibus criminal ground of appeal with leave of this court; she filed two additional ground of appeal as follows:

Ground 2:

The learned trial Judge erred in law in convicting the appellant on the charge of murder when the prosecution failed to call the Medical Doctor who attended to the deceased before her death to come and testify as to the cause of death.

Particulars of Errors:

(a) Although the prosecution is not duty bound to call all the witnesses through whom the cause of death could be determined.

(b) The cause of death was not proved beyond reasonable doubt in view of the failure of the prosecution to call the Medical Doctor that attended to the deceased before her death.

Ground 3

The charge of murder was not proved against the accused beyond reasonable doubt.

In the appellant’s brief of argument filed with the leave of this court on 7th May, 1999 appellant raised the under-mentioned as issues for determination in this appeal:

“Issues for Determination:

(1) Whether the failure of the prosecution to call the witness or Doctor that attended to the deceased at Olusanya Hospital before her death was not fatal to the case for the prosecution.

(2) Whether the prosecution proved its case against the appellant beyond reasonable doubt.”

After service of the appellant’s brief of argument on the State referred to as the respondent in this judgment with the leave of this court time was extended to enable respondent file its respondent’s brief of argument out of time with leave that respondent’s brief filed on 30th June, 1999 be deemed as properly and validly filed. At page 4 paragraph 3 of respondent’s brief of argument the issues for determination read thus:

“3. Issues for Determination:

3.01 Whether the prosecution proved the cause of death of the deceased beyond reasonable doubt.

3.02 Whether in the circumstances of this case the defence of self-defence could avail the appellant thereby leading to her discharge and acquittal.

3.03 Whether in the light of the evidence of PW7 given on oath, her evidence could be said to be prejudiced against the accused.”

This been an appeal on capital offence the attitude of this court is liberal John Peter (Alias Ikiri Peter) v. The State (1994) 5 NWLR (Pt. 342) p. 45 at 64 CA.

“The attitude of the court even an appellate court is to consider on liberal grounds all available legal and equitable defences open for consideration for the appellant.

Confirmed by the Supreme Court in John Peter v. The State 1997 3 NWLR (Pt. 496) p. 625 SC that leads me to adopt the issues formulated by the respondent as more embracing in the determination of this appeal. The issues raised by appellant are similar with liberty to make cross references to them in consideration of this appeal.

It is pertinent to state that issues 1 and 2 in appellant’s brief and issues 3.01 and 3.02 in respondent’s brief are similar and can be further encompassed that in the circumstances of this case with the evidence adduced by the prosecution was the proof of the guilt of murder established against her beyond reasonable doubt?

In consideration of the issue of the burden of proof in this case attention is focused on the provisions of Section 138 (1) Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 and Section 36(5) Constitution of the Federal Republic of Nigeria 1999.

Section 138(1) Evidence Act 1990 provides that:

“138(1) if in the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to the provisions of section 141 of the Act on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.”

Whilst section 36(5) the fundamental right of innocence entrenched in the 1999 Constitution of the Federal Republic of Nigeria stipulates as follows:

“36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”

In the instant appeal appellant was charged with the offence of murder contrary to Section 319 of the Criminal Code of Oyo State Law supra. This was judicially interpreted from time immemorial succinctly put in Solomon Thomas Akpan v. The State (1992) 6 NWLR (Pt. 248) p. 439 at 462 wherein the Supreme Court held as follows:

(14) In homicide cases the onus of proof on the prosecution to prove cause of death and the prosecution can discharge the burden either by:

(a) Direct evidence Or

(b) Circumstantial evidence that creates no room for doubt or speculation.

In the instant case, there is ample evidence of the nature of wound inflicted on the believed evidence by the appellant who ended with the collapse and death of the deceased in the house of PW2 Adetola v. The State (1992) 4 NWLR (Pt. 235) p. 267, R. v. Oledima (1940) 6 WACA 202. Uyo v. A.G. Bendel State (1986) 1 NWLR (pt. 17) p: 418 at 426. Gabriel v. State (1989) 5 NWLR (Pt. 122) p.457 referred to, followed and applied.

(15) Medical evidence or medical report is not a prerequisite for establishing the cause of death. It is not essential where:

(a) There is evidence of the death of the deceased and

(b) There is evidence that the death is as a result of the unlawful and intentional act of the accused person, Oka v. The State 9/11 SC 17 referred to.”

Where the prosecution established the cause of death the prosecution has the burden not only that the act of the accused person could have caused the death of the deceased but that it did. There must be clear evidence that the death of the deceased was the direct result of the act of the accused to the exclusion of all other reasonably probable cause R. v. Nwokocho (1949) 12 WACA 453 Oye v. The Queen (1961) 2 SCNLR 354, (1961) 1 All NLR 680, although the cause of death may be inferred from the circumstances of the case Dokuri v. The State 1965 NMLR 163.

As stated above the appellant testified on oath for herself in which she stated in part of her testimony as follows at pages 101 and 102 of the record of appeal:

“Accused – Baby Justina Egbeyom sworn on Holy Bible states in English Language:

I remember when I was arrested at Benin in Edo State. I was arrested because of the woman with whom I was working with.

I was living with the deceased before her death. I kill the deceased with the iron rod exhibit ‘A’ because I wanted to carry her belongings in the house.

Having killed her with the iron rod, I opened the door and carried away the key of the door with me when I need from the house.

I later ran away to Benin after the incident. I now say that I did not carry the key of the door away. I left it at the door after having opened the door.

That is the end of my evidence, the deceased was known to me as Nike and the husband is Areoye Oyebola. The husband is now in court. I was the house girl of the deceased.

I remember that, I killed her with the iron rod now before the court. I killed the deceased because of her money.

The deceased was fasting on the day when I killed her. I was sorry to have killed her. It was the work of Satan. I remember that the deceased sent the other lady working with her to the Bank to collect money for her. But I did not steal the money.

Cross-Examination by Mr. Ishola: I am the one that killed her with the iron rod now in court. I killed her because I wanted to steal her belongings.

Re-examination: Nil”

Apart from her testimony on oath she made extra judicial statements in her statement to the investigating policeman the statements were admitted and marked in evidence without objection as exhibits ‘C’ and ‘C1 ‘, ‘D’ and ‘D1’ and ‘E’ and ‘D1’.

In Ameh v. State 19786/7 SC 27 the Supreme Court per Fatayi-Williams JSC (as he then was) observed as follows:

“It is settled law that, in a criminal case, the onus throughout the trial is on the prosecution to prove the case beyond reasonable doubt. Even if an accused had admitted in a written statement to the police that he committed the crime, the court would still have to consider that statement along with the other testimony in order to determine whether the confession was voluntary or not.” See further Ukut v. State 1995 9 NWLR (Pt. 420) p. 392 SC.

In Miller v. Minister of Pensions (1947) 2 All ER 372 at 373 Denning J. (as he then was) observed on proof beyond reasonable doubt as follows:

“Does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.” It was adopted and followed by Nnamani JSC in Lori v. State 1980 8/11 1 SC 81”

Having stated the applicable law the next step is the consideration of the attacks of the judgment of the learned trial Judge and to see whether he applied the proper and appropriate law in convicting the appellant of the offence of murder.

At pages 134 and 135 of the record of appeal the learned trial Judge stated as follows:

“I have carefully considered the evidence led by the prosecution in support of the charge of murder and the evidence put forward by the accused in defence of the charge together with the final submissions of both counsel.

Having regard to the evidence before the Court I make the following findings of fact:

(a) That the accused was formerly a house maid to the deceased;

(b) That the accused was later sacked because of her stealing some of the belongings of the deceased;

(c) That the accused was later re-engaged after much pressure from the accused;

(d) That by that time, she was re-engaged in the office of deceased;

(e) That on the day of incident the deceased gave the 6th PW cheque to cash in the bank;

(f) That the encashment of cheque by the 6th PW for the deceased was with the knowledge of the accused;

(g) That the accused on the day of incident, hit the deceased with the iron rod Exhibit A until the deceased collapsed on the ground;

(h) That the deceased was later carried to Olusanya Hospital where she later died on the same day;

(i) That the 4th PW later performed postmortem examination on the body of the deceased;

(j) That the cause of death of the deceased was found to be head injury and/or subdural hemorrhage;

(k) That the accused having been medically examined by 1st DW, she was found not to have got any mental abnormality.

Having regard to the above findings of fact can it be said that the prosecution have proved beyond reasonable doubt the guilt of the accused”.

The learned trial Judge proceeded to evaluate and ascribed probative value to the above findings of fact. His first port of call was to advert his mind to the essential ingredients of the burden of proof to sustain the charge under section 319 Criminal Code Law of Oyo State aforesaid, by prove beyond reasonable doubt, as set out at page 136 of the record of appeal. The ingredients are as follows:

(1) That the deceased has died.

(2) The cause of her death.

(3) That her death resulted from the act of the accused.

(4) That the accused knew that her act would result in the death of the deceased.”

After setting out the above he stated as follows as to how the deceased met her death:

“The only direct evidence before the court was the evidence as given by the 7th P.W who claimed to be a daughter of the deceased. Her evidence was cogent and has given a vivid account of how the accused hit her mother, the deceased with the iron rod Exhibit A on the head until she fell down and immediately became unconscious. There is no doubt that by the time when the 7th P.W gave evidence in this case, she was about ten years old. She had gravity of giving evidence on oath as considered in his ruling at page 98 of the record of appeal thus:

Ruling:

Having regard to the answers given to my questions that to the proposed 7th P.W there is no doubt in my mind that she understands the meaning of being sworn on oath. She is therefore to be sworn on oath.

The 7th P.W was consistent and unequivocal in the way she gave evidence as to how her mother was hit on the head before she fell down and later carried to the hospital before she died. I have no reason to doubt the veracity of sic (her) evidence. I accept her evidence as the true version of how the accused hit the deceased on the head with the iron rod.”

It has been held in the case of Akpan v. The State (1971 – 1972) 7 NSCC p. 201: (1972) 4 SC 6 thus:

“The sworn evidence of a child need not as a matter of law be corroborated but the jury should be warned or the trial Judge must warn himself that there is uncorroborated evidence of young girls or boys.”

I am well aware and mindful of the fact that 7th P.W was a young girl of about 10 years and more so the daughter of the deceased. I must therefore receive her evidence with caution. In the circumstances, I nevertheless caution myself about her evidence given by the prosecution.

I am mindful of the danger in accepting the uncorroborated evidence of the young girl like the 7th P.W.

The evidence as given by the accused in court can be said to be corroboration of the evidence as given by the 7th P.W regarding how the deceased sustained injuries from which she later died in the hospital.

The appellant attacked the conclusion of the narration of how the deceased met her death through the evidence of 7th P.W a child whose evidence should be corroborated more also being the daughter of the deceased ought to have been treated with caution being a tainted witness.

The respondent submitted that the learned trial Judge applied the proper law of the evidence of a sworn child that applying Akpan’s case supra that as a matter of law the sworn evidence of a child need not be corroborated but the trial Judge must warn himself on the uncorroborated evidence of the child. The learned trial Judge warned himself by receiving the evidence with caution and corroboration of the evidence of the appellant on oath in court and the evidence of appellant’s witness a medical doctor who because of her testimony in court in which she admitted killing the deceased with the iron rod Exhibit A indirectly raised the issue of sanity or insanity of the appellant. After thorough medical examination in the hospital 1st P.W the medical doctor found appellant to be sane and also had no previous evidence of insanity. As the learned trial Judge applied the proper law by not only cautioning himself on the evidence of 7th P.W a sworn child, he proceeded to consider the issue of corroboration and rightly held that evidence of 7th P.W was corroborated by the evidence of the appellant on oath in court. This point was raised as issue 3.03 in respondent’s brief of argument thereby led to its consideration at this stage along together with the contention of appellant on her issue of proof beyond reasonable doubt.

Respondent submitted further on issue 3.03 that though corroboration was unnecessary the learned trial Judge found corroboration in the evidence of the appellant and evidence of 1st, 4th and 5th D.W.s. Respondent relied on the cases of Akpan v. The State supra, Gira v. The State (1996) NWLR (Pt. 443) page 375 SC; (1995) 3 NWLR (Pt.385) 619.

In Michael Peter v. The State (1997) 12 NWLR (Pt. 531) p. 1 at 17, 18 and 26 the Supreme Court held on who is a competent witness and when a child witness may be sworn as follows:

“(4) Section 183 of the Evidence Act is aimed at a child who does not understand the nature of an oath. Where in the opinion of the court a child understands the nature of an oath, it is not necessary for the court to carry out further preliminary investigation for the purpose of ascertaining whether the child has sufficient intelligence to satisfy his giving such evidence and understands the duty of speaking the truth as prescribed by Section 183 of the Evidence Act Okoye v. The State 1972 12 SC 115, Sambo v. State 1993 6 NWLR (Pt. 300) p. 399 referred to. (5) The need for inquiry under Section 155(1) and 183(1) of the Evidence Act arises only where the trial court is of the view that by her tender age a witness ought not to be sworn and that his or her evidence may require corroboration. In the instant case P.W 1 who was 13 years of age is reasonably expected to understand questions put to her and to understand the nature of an oath. Ode v. State (1974) 1 All NLR 411 referred to.

(6) Section 155(1) of the Evidence Act renders all persons competent witnesses unless the Court is of the opinion that they are prevented from understanding the question put to them or from giving rational answers thereto by reason of tender age.

Per IGUH, JSC at page 26.

“In the present case, there is nothing to show that P.W I was prevented from giving rational answers thereto by reason of her tender age. On the contrary, the record clearly indicates that she gave clear and intelligible evidence both in her examination in chief and under cross examination.

I am in entire agreement with the court below that section 155(1) of the Evidence Act is totally irrelevant and inapplicable in the present case because there is nothing to show that P.W 1 was prevented from understanding the questions put to her or from giving rational answers to these questions by reason of her tender age. I also agree that the finding of the learned trial Judge that D.W 1 understood the nature of an oath clearly took her evidence out of the ambit of Section 183(1) Evidence Act.”

The appellant apart from the above complained about the tender age of the 7th P.W being the daughter of the deceased her testimony is tainted and ought not to have been relied upon. This issue of treatment of evidence of friends and relations of deceased was dealt with exhaustively in John Peter (Alias Ikiri Peter) v. The State (1994) 5 NWLR (Pt. 342 at pages 68, 69 and 74 by the Court of Appeal wherein it was held as follows:

“15. There is no rule of law that requires a Judge to warn himself before accepting the evidence of a blood relation of the deceased Akpan v. State (1972) 4 SC 47 at 58).

16. The principle has long been established that the fact that the witnesses for the prosecution had been the relation or friends of the deceased does not make their evidence inadmissible, the fact only makes a tribunal adjudicating on the case to be circumspect in the reception of their evidence and to treat such evidence with caution. In the instant case the findings of fact and evaluation of the evidence of the alleged tainted witnesses by the learned trial Judge were aptly justifiable and need not be disturbed more so when they were based on the credibility and demeanors of the social witnesses (Oyuegbu v. State (1994) 1 NWLR (Pt. 328) p. 348 referred to) which principle was also confinned by.

Uwaifo JCA (as he then was) in Agwu v. The State 1998 4 NWLR (Pt. 544) page 90 at 102 CA that;

“10. The evidence of close relations and friends of a deceased who testify for the prosecution in a homicide case is admissible. The relationship of a witness to a victim played, a weak secondary role to the nature and circumstances of his evidence. However, it is a matter of prudence for a court hearing such a case to act with circumspection in receiving their evidence and to treat the evidence with due the caution”

The duty placed on a trial Judge in respect of sworn evidence of a child as stated by Lewis JSC in Arebamen v. State (1972) 4 SC 35 as follows:

“There is no requirement in law that the sworn testimony of a child must be corroborated. Certainly, it is desirable to look for corroboration but if the learned trial Judge fully considers the matter and comes to the conclusion that he believes the sworn testimony of the child he is entitled to act on that alone just as much as if it had been the sworn testimony of an adult …

The finding of fact and evaluation of them in the instant appeal by the learned trial Judge were deliberately and advisedly set out above and the law applicable in the decided authorities to enable this court to consider the contentions of the appellant and respondents on the testimony of 7th P.W a sworn child and daughter of the deceased.

Applying the above authorities to the facts of the instant appeal the learned trial Judge’s approach was impeccable he applied proper law coupled with the credibility of the witnesses that as an appellate court this court lacks jurisdiction as there is no legal justification or basis to disturb the said conclusion that he believed the testimony of the 7th P.W after warning himself that appellant clubbed the deceased on the head with iron rod admitted as Exhibit A until she fell into a state of unconsciousness which led the deceased to be taken to Olusanya Hospital from where she was pronounced dead. In reaching this conclusion the learned trial Judge accepted the evidence on oath of appellant that she killed the deceased by hitting her with an iron rod admitted as Exhibit A.

From the foregoing the learned trial Judge concluded that prosecution discharged the burden placed on respondent that deceased died. For the above reasons the complaints about the testimony of 7th P.W and attack of being a relation to wit a daughter ought not to have been accepted for lack of corroboration and evidence of a sworn child was accepted contrary to the law lacks and devoid of substance and merit is hereby rejected.

The second hurdle for respondent is that it must prove the cause of death of the deceased.

Appellant contended that the failure of the respondent to call Dr. Olusanya who admitted the deceased to his hospital, in that the testimony of 4th P.W was not sufficient in law to establish the cause of death. It was Dr. Olusanya who attended to the deceased upon her being rushed to his hospital.

The failure to call Dr. Olusanya denied the lower court the opportunity of knowing the fact surrounding her death at the hospital. It denied the appellant the opportunity of cross examining on the whole scenario of what happened at Olusanya hospital before the deceased’s dead body was subsequently carried to Adeoyo Hospital, ring Road, Ibadan.

Appellant submitted that Dr. Olusanya is a vital and material witness to testify as to the cause of death. He urged the court to invoke the provision of section 149(d) Evidence Act against the respondent as decided in Ogunsi v. The State 1994 (Pt. 322) p.583 and allow the appeal. Appellant relied further on the cases of R. v. Kuree 7 WACA 175 at 177 and Kobori v. The State 1989 1 CLRN page 174.

In response, the respondent submitted that the calling of the 4th P.W medical doctor who performed the postmortem examination was the material witness to given evidence as to the cause of death. The failure to call Dr. Olusanya is not fatal to respondent’s case since 4th P.W testified as to the cause of death. So court to reject the contention of appellant to invoke section 149(d) Evidence Act as respondent did not deliberately withhold the evidence of Dr. Olusanya as he did not perform the postmortem examination on the deceased.

At page 138 of the record of appeal the learned trial Judge stated as follows on the issue of cause of death:

“The fact that the deceased died on the same day when the accused injured her on the head with an iron rod, Exhibit A is not in dispute. The next point to be considered is whether it was the act of the accused that caused the death of the deceased. There is no doubt that the deceased did not die on the spot when the accused hit her with the iron rod on the head. But there is no doubt that the deceased died on the same day in Doctor Olusanya’s Hospital.

The points which will have to be considered here are (a) was the failure of the prosecution to call the doctor who attended to the deceased at Olusanya Hospital be said to be fatal to the prosecution’s case as to the cause of death?

My answer to this will be in the negative.

In the case of Kobari v. The State (1989) 1 CLRN p. 174 it was held thus:

“An offence of murder is certainly not proved without proving the cause of death being as a result of some act of the accused person. In the instant case failure of the prosecution to call the doctor or doctors who managed the deceased in the hospital before his death is fatal to the case of the prosecution because cause of death was not established. There must not be any intervening factors between the act of the accused and the time of death:”

The situation in Azeez Kobari v. The State (supra) is not in all fours with the present case of the accused. In Kobari’s case supra, the deceased was admitted into the hospital on 10th March, 1986 and he died on 14th March, 1986. In the interval, the deceased was taken to the theatre and given infusion. The applicant did not deny that he stabbed the deceased in his evidence at the trial but he said he did so in self defence. The doctor who gave evidence in that case there, would have been contamination on the wound (clostridium welchii) which caused gangrene.

That was why the appeal was allowed in that case.

But in the present case, there was evidence of the doctor who performed postmortem examination of the deceased that the cause of death was due to head injury and massive subdural hemorrhage.

There as the uncontroverted evidence that death occurred on the same day when the injuries were inflicted on the head of the deceased by the accused. There were no intervening factors between the act of the accused and the time of death of the deceased. It is my view that the state of facts as to the cause of death of the deceased in this case is so clear that without medical evidence the cause of death was not in doubt. See the case of the State v. Orok (1989) 1 CLRN 163.

In Orok v. The State (1989) 1 CLRN 163. By the circumstances in that case the evidence led established the death of the deceased as the result of the attack on him with lethal weapon by the accused. It was held that the cause of death need not be proved by postmortem medical examination as it could be properly inferred to be the wound suffered by the deceased from the attack.

By what I have said so far, I am of the firm belief that it was the injuries sustained by the deceased as a result of the accused hitting her on the head with the iron rod that caused the death of the deceased so soon thereafter at Olusanya’s hospital. I therefore hold that the act of the accused in hitting the deceased on the head with the iron rod, Exhibit A that caused the death of the deceased. In Osan Hem v. The State (1984) 15 NSCC 218 where the deceased stabbed his elder brother of full blood on the neck and chest and death resulted within an hour of the incident. Though there was no medical evidence the trial Judge convicted and sentenced appellant to death.

It was held:

“Though medical evidence is desirable, it is not absolute requirement in every case. The cause of death is a matter which can be inferred from the circumstances. The death of the deceased was a direct result of the appellant’s act; a trial Judge may infer cause of death from the circumstantial evidence before him.”

Again in Kato Dan Adamu v. Kano Native Authority (1956) SCNLR 25 where the deceased was stabbed twice and the deceased died two days later, conviction was upheld by the Supreme Court. The death of the deceased in the present case occurred on the same day when she was hit on the head with iron rod by the accused. The accused has confessed in both her evidence and statement made to the police that she was the one who hit the deceased on the head with the iron rod before she later saw her in a sleeping position.” (The Italics is mine).

I have taken the pains to reproduce the part of the learned trial Judge’s judgment on the vital issue of cause of death of the deceased and the failure of the prosecution to call Dr. Olusanya and whether the failure to call Dr. Olusanya can engender this court to invoke Section 149(4) Evidence Act with the resultant conclusion that respondent failed to prove beyond reasonable doubt the cause of death of the deceased if so it vitiates the conviction of the appellant for murder of Mrs. Nike Oyebola on 18th May, 1993 thereby leading to the quashing of her conviction for failure to discharge an essential ingredient of the offence of murder that the unlawful act of the appellant caused the death of the deceased.

The cause of death in a murder case is not only vital but also crucial. This important issue was considered in John Peter (alias John Nkiri) v. The State (1994) 5 NWLR (Pt. 342) at 50 p. 67 and 68 which followed and adopted what was held 14 and 15 in Akpan’s case supra on consideration of onus of proof in homicide cases.

In John Peter (Alias John Ikiri) v. The State supra is held as follows because of its importance hence the repetition for emphasis:

“(7) In homicide cases the burden is on the prosecution to prove the cause of death either by direct evidence or by circumstantial evidence which has the quality of not creating room for doubt or speculation (Akpan v. The State (1992) 6 NWLR (Pt. 248 at 439 referred to). 8 and 9 are already referred to above in this judgment.”

After exhaustive consideration of legal authorities on the principle to guide the trial court in a murder case the learned trial Judge as to the necessity of calling medical doctor to prove cause of death concluded that, though medical evidence is desirable it is not absolute requirement in every case as the cause of death is a matter which can be inferred from the circumstances of each case. He accepted the evidence of 4th P.W the medical doctor who performed the postmortem examination. The learned trial Judge posed the question as to the calling of Dr. Olusanya and whether the failure of calling him was fatal to the prosecution’s case as to the cause of death resolved same in the negative and concluded with this finding of fact:

“I therefore hold that the act of the accused in hitting the deceased on the head with the iron rod, Exhibit A that caused the death of the deceased.”

Being finding of fact as an appellate court having regard to the evidence adduced in the case the finding of fact in my candid opinion is not perverse and therefore lack jurisdiction to disturb this finding of fact. Based upon the finding the prosecution established beyond reasonable doubt that it was the actus Reus of the appellant in hitting the deceased with a lethal weapon Exhibit A on the head that caused the death of the deceased and that the calling of Dr. Olusanya was not mandatory, essential, and not crucial to establish the cause of death as it was patently clear that the iron rod Exhibit A under the control of the appellant was used in clubbing her head which resulted in the death of the deceased.

The contention of the appellant that the failure of the respondent/prosecution to call Dr. Olusanya as a witness was failure on the part of the prosecution to establish the cause of death of the deceased was not borne out of the printed evidence as the learned trial Judge from the evidence of 4th P.W. and the evidence of the appellant with hitting the deceased on the head with Exhibit A made the learned trial Judge to draw and infer reasonably the cause of death. The contention of appellant though forceful is unmeritorious and therefore rejected.

It is trite law as stated above in this judgment that it is incumbent on the trial Judge to consider in homicide cases all legal, equitable and constitutional provisions in defences available to the appellant whether raised or not by the accused made the learned trial Judge to consider the issue of self defence, which has been bone of contention that as there were material conflicts in the prosecution’s case as to the breaking of flower vase or condition and resultant position of the furniture impliedly raised that there was a struggle the issue of self defence which appellant now contend was not properly considered.

With respect this contention is devoid of any consideration in that at pages 143 and 144 of the record of appeal the learned trial Judge stated as follows:

“I shall now deal with the defence of self defence as put forward by the accused in her first statement Exhibit C1.

I find it very difficult to believe the statement made by the accused that it was the deceased who first hit her with the iron rod. This to my mind is an afterthought calculated by the accused to cover up her act of inflicting head injuries on the deceased without any just cause.

… I cannot, having regard to the evidence of the 7th P.W as to what actually happened on the day of incident, believe the statement of the accused that it was the deceased who first hit her with the iron rod. I accept the evidence of the 7th P.W that it was the accused that injured the deceased on the head with iron rod Exhibit A. The accused herself had confirmed this point in both her statement Exhibit D and her evidence in Court.

I therefore finally hold that the defence of self defence is not available to the accused in this case.

It is trite law that however stupid a defence in a criminal matter it must be considered Rex v. Barimah 11 WACA 49; Kim v. The State (1992) 4 NWLR (Pt. 233) p. 17, Laoye v. State (1985) 2 NWLR (Pt. 10) p. 832.

The ingredients of self defence in criminal case are stated in Kwaghsir v. State (1995) 3 NWLR (Pt. 386) 651 at 669, Nwambe v. State (1995) 3 NWLR 3 NWLR (Pt. 384) at 385 adopted and followed in Rtd. Captain Jauro Musal Liya v. The State (1998) 2 NWLR (Pt. 538) p. 397 at page 408 CA as follows:

”The ingredients of self defence are:

(a) The accused must be free from fault in bringing about the encounter.

(b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.

(c) There must be no safe or reasonable mode of escape by retreat.

(d) There must have been a necessity for taking life.”

To sustain the defence of self defence all the four ingredients stipulated above must co-exist. In the instant case all the 4 ingredients of self defence are absent in the case of the appellant. In her testimony on oath in court no iota or scintilla of evidence was led on behalf of the appellant, this defence has not been borne out from the printed evidence; it was only urged on the court to draw the inference from the 1st statement of the appellant exhibits C and C1. With respect the issue has been raised half heartedly on appeal, but as the learned trial Judge considered it, with the 4th ingredients of the self defence lacking, the defence of self defence is hereby rejected as the learned trial Judge’s consideration cannot be faulted in fact and in law on the sketchy and half hearted contention of the appellants which respondent rightly pressed on this court to reject and is hereby rejected.

Appellant also raised the issue of confessional statements contained in Exhibits C and C1, D and D1 and E and E1.

In Fred Dapere Gira v. The State (1996) 4 NWLR (Pt. 443) p. 375 at 387 and 388 the Supreme Court stated what constitutes a confession and effect to ground conviction as follows:

“(5) By virtue of Section 27(i) Evidence Act a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. It follows that once an accused person makes a statement, under caution saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. Ordinarily, a conviction can be based on a confession alone. However, it is desirable that the things stated therein should be tested by facts outside the statement to see whether they are correct (Kasa v. The State (1994) 5 NWLR (Pt. 344) p. 269 Obiasa v. The Queen 1962 2 SCNLR p. 402.

(6) When a confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, as it was in this case, it is enough to sustain a finding of guilt regardless of the fact that the maker resiled there from or retracted it altogether at the trial. Such a retraction does not necessarily make the confession inadmissible (Egboghonome v. The State (1993) 7 NWLR (Pt. 306) Pg. 383 Banure v. State (1994) 1 NWLR (Pt. 320) p. 267 referred 10).

See further Liya v. The State supra wherein it was held:

That a confessional statement is an extra judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of the offence for which he stands accused. In the instant case Exhibit A qualifies as a confessional statement as the accused admitted therein that he shot indiscriminately as the deceased’s back to frighten him and his men in self defence.”

In the instant case at page 142 of the record of appeal the learned trial Judge held exhibits 0 and 01 as confessional statement and proceeded to advert his consideration to the rule of law that a confessional statement must be subjected to scrutiny with its truthfulness tested against other available evidence whether:

(a) Is there anything outside the confession to show it is true?

(b) Is it, corroborated?

(c) Are the statements made in it in fact true as far as they can be tested?

(d) Was the prisoner one who had the opportunity of committing the crime?

(e) Is her confession possible?

(f) Is it consistent with other facts which have been ascertained and which have been proved?

The learned trial Judge rightly held that the confessional statement as made by the accused satisfied the six tests as enumerated above. In addition, he found that there were other points outside the confession made by appellant in Exhibit D1 to show that it was true such was the evidence of 7 P.W who had testified that the accused/appellant hit her mother,the deceased with an iron rod on the head. The appellant gave evidence on oath to confirm her confessional statement in Exhibit D1 that she knocked the deceased on the head with iron rod, Exhibit A, with opportunity to commit the offence through her presence at the scene of incident on 18/5/93. That the confessional statement made by the accused was corroborated by the evidence of the 7th P.W and appellant’s testimony on oath in court. This was not diminished by appellant through her 1st D.W a medical doctor that she has not suffered insanity. The learned trial Judge finally held that the appellant’s confessional statement was true regarding how the deceased met her death on 18th May, 1993. The above findings of facts are borne out from the printed evidence. The attitude of an appellate court towards the finding of fact by the lower court is well settled. It is that the appeal court ordinarily loathes to disturb finding of fact made by the lower court except where such finding is unsupportable by the evidence or the finding is perverse or there is concrete proof from the printed evidence that the learned trial Judge failed to take advantage of the peculiar opportunity of seeing and watching the demeanour of the witness. An appellate court is handicapped and will not ordinarily reverse the findings of fact made by the trial Judge based on the credibility of witness except it is unsupportable by the evidence.

In the instant case in my personal opinion and assessment the finding of fact on the confessional statement of the appellant both on her testimony on oath and her extrajudicial statement Exhibit D and D1 as found by the learned trial Judge to be confessional statements are not perverse therefore as there is no legal basis or justification I have no basis to disturb the said finding of fact. In reaching the finding the learned trial Judge based it also on credibility of witnesses he took advantage of watching their demeanors which opportunity this court lacks. I therefore endorse the conclusion and finding of the learned trial Judge that it was the actus reus of the appellant that resulted in the death of the deceased on 18/5/93.

Still on consideration of prove beyond reasonable doubt for the prosecution to succeed it must proof finally and conclusively that appellant intended to kill the deceased or to inflict on the deceased grievous bodily harm which in legal parlance and terminology that she had the Animus Furandi.

It is common ground that appellant owned the lethal weapon, the iron rod Exhibit A which she brought to the premises of the deceased on 18th May, 1993 and used the said rod in hitting the deceased on the head which consequently resulted in the death of the deceased. As it was held by the Supreme Court in Gira v. The State supra at p. 388 that:

“9. It can be inferred that the “beating” of a deceased with a lethal weapon is intended by the perpetrator to kill the deceased or inflict grievous bodily harm. This is because the law is that a person intends the natural consequence of his conduct Adamu v. Kano Native Authority (1956) SCNLR 65, Irek v. The State (1976) 4 SC 65).”

Based on her testimony on oath she established and actualised her premeditated intention to kill the deceased and inflict grievous bodily harm on the deceased as preparatory to her stealing of the personal belongings of the deceased.

The prosecution proved the Animus Furandi of the appellant to murder the deceased, stealing and carting away with the personal belongings of deceased which intention appellant manifested by clubbing the head of the deceased with iron rod Exhibit A her personal iron rod which resulted in the death of the deceased on 18th May, 1993.

Looked at from all angles and after careful consideration of all available legal, equitable and constitutional defences open to the appellant I come to the irresistible conclusion by affirming the judgment of the lower court of Adekola. J, as he then was delivered on 31st January, 1996 that the respondent proved beyond reasonable doubt that appellant murdered Mrs. Nike Oyebola in Ibadan on 18th May, 1993 pointedly to the dismissal of appellant’s appeal as unmeritorious.

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Other Citations: (2000)LCN/0682(CA)