Doyin Alagbe V. The State (2007)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment delivered by Abimbola, J. on 10th May, 2001 while sitting at the High Court of Justice, Ogbomoso, Oyo State of Nigeria.
On 15-2-07 when the appeal was heard, the respondent who was served was not represented by counsel. Since a brief of argument was filed on behalf of the respondent, the appeal was taken as argued vide Order 6 Rule 9(5) Court of Appeal Rules, 2002.
At the trial court, the appellant was charged for the offence of manslaughter contrary to section 317 of the Criminal Code, Cap 30 Volume II, Laws of Oyo State of Nigeria, 1978 and punishable under section 325 of the same law.
As extant on page 48 of the transcript record of appeal, the charge was read in English language and explained to the appellant on 28th March, 2000. She said she understood the charge and pleaded not guilty. Thereafter, in a bid to prove their case, the prosecution called six witnesses and tendered seven exhibits. In her defence, the appellant testified and called one witness.
It is apt at this point to assemble the facts in this matter. The prosecution’s case was that one Valentine Akajiofor, appellant’s intended husband, had an earlier relationship with another lady which resulted in the birth of Ifeoluwa – the deceased on 23rd August, 1993. The deceased, who was about five years old at the material time, stayed with P.W.1 – his maternal grandmother. The deceased attended Tabernacle Nursery and Primary School also known as the United Gospel Faith Tabernacle Nursery and Primary School where P.W.2 was the headmistress.
On 25th February, 1998, at about 2.00 p.m., the deceased got home earlier than the usual time as he was supposed to attend a lesson after the normal school hours till 3.00 p.m. This prompted P.W.1 to ask the deceased why he came home early. The deceased told P.W.1 that ‘one aunty’ gave him coca-cola to drink and instructed him to go home immediately while the ‘aunty’ went to his father’s shop. As P.W.1 wanted to take the deceased back to school, he started to vomit. The deceased was rushed to a nearby clinic and thereafter to Baptist Hospital, Ogbomoso where he passed on the following day; 26-2-98.
Two medical reports issued by one Dr. J. O. Akinjise were admitted as exhibits 1 and 1A respectively. They were tendered through one Dr. Gbadero Adedosu – P.W.1. Sequel to a report made by the hospital authority to the Police based on the history stated by P.W.1, the appellant was arrested and she made a series of statements. In Exhibit 2, she denied the allegation while in Exhibit 3, she admitted same. In Exhibit 5, she said she was induced by P.W.5 to admit the offence charged. P.W.5’s reaction to exhibit 5 was tendered as exhibit 6.
At the trial the appellant said she was in her husband’s shop at the material time on 25-2-98 in company of her husband’s younger sister, DW2. She was informed by her husband of what happened to the deceased whom she said she never met but had knowledge of his existence and that she did not commit the offence. D.W.2 confirmed that she was with the appellant at the material time.
The learned trial judge was duly addressed by learned counsel on both sides of the divide. The trial judge relied squarely on the medical reports and the appellant’s confessional statement as in exhibit 3 to find that the appellant ‘killed the deceased in circumstances that constitute murder under section 316(1) of the Criminal Code Law’. This stance appears rather strange to me. However, prudence prevailed as the learned trial judge found the appellant guilty for the offence of manslaughter upon which she was arraigned and tried. She was found guilty, convicted and sentenced to 10 years imprisonment with hard labour.
The appellant felt unhappy with the stance posed by the learned trial judge and appealed to this Court. The Notice of Appeal dated 8th August, 2001 carries five grounds of appeal.
The appellant’s brief of argument dated 28th September, 2004 was filed on 29th September, 2004. The lone issue for determination formulated on page 4 of the brief of argument reads as follows:
“Whether the prosecution discharged the burden of proving the guilt of the appellant beyond reasonable doubt.”
The Respondent, at page 3 of its own brief of argument agreed with the issue couched on behalf of the appellant as reproduced above.
This is a case in the realm of manslaughter. The essential ingredients the prosecution must establish and prove beyond reasonable doubt are as follows:-
(a) that Ifeoluwa Akajiofor has died;
(b) the cause of death; and
(c) that the death of Ifeoluwa Akajiofor was caused by an act of the appellant.
The above are deducible in the decision of the Supreme Court in the case of Idowu vs. The State (2000) 7 SCNJ 245 at p. 270.
It is not in contention that lfeoluwa Akajiofor has died. It is obvious as there is no dispute on same. It is clear that in Exhibits 1 and 1A, the medical reports, Ifeoluwa – the deceased, was certified dead on 26-2-98. Indeed, this was confirmed by P.W.4, Dr. Adedosu, the medical officer who tendered the two exhibits. And so, I find as a fact that Ifeoluwa – the deceased, died on 26-2-98.
In Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 at 441 H, Ayoola, J.S.C pronounced as follows:
“In every case where it is alleged that death has resulted from the act of a person, a casual link between the death and the act must be established and proved, in a criminal proceedings, beyond reasonable doubt. The first logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act (or omission) of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.”
The stage is now set for the inquiry in this matter to proceed accordingly. What then caused the passing on of Ifeoluwa, the deceased?
Learned counsel for the appellant observed that there are no eyewitness account to the alleged poisoning of coke given to the deceased to drink. He maintained that P.W.1 only said that the deceased was vomiting and she took him to the hospital where he died the following day.
Learned counsel submitted that though medical evidence ceases to be of any practical or legal necessity in cases of homicide, where the case of death is obvious, in a case such as the one on hand, it is of utmost importance that the prosecution must prove by medical and scientific evidence that the alleged poison caused or accelerated the deceased’s death. He cited in aid of the submission the cases of Amayo v. The State (2001) 12 SCNJ 374 at 388; Akinfe v. State (1988) 3 NWLR (Pt. 85) 729 at 745 E.G.
Learned counsel contended that such a scientific and medical evidence must not only be strong and compelling but must unequivocally establish the cause of death and provide the necessary nexus between the death of the deceased and the act of the appellant. He cited Okafor v. State (1990) 1 NWLR (Pt. 128) 614 at 626 E-G.
Learned counsel further observed that in this case, the medical evidence is not only inadequate, but it is also equivocal. He stressed the point that P.W.4 did not proffer any cause of death but only said that he totally agreed with the reports in exhibits 1 & 1A respectively. Learned counsel stressed the point that the medical report is to the effect that the death of the deceased could have been as a result of acute encephalopathy which could have been due to poisoning as alleged by P.W.1, viral infection or some other severe insult like cerebral malaria as is quite common in our environment. He felt that it is clear that the doctor was not certain of the cause of death, but was only making a guess. He submitted that where there are possibilities that death could have resulted from other means apart from that which was alleged, a doubt is thereby created which doubt must be resolved in favour of the appellant. He cited Oforlete v. The State (supra) at pages 17-172.
Learned counsel further opined that even if it is assumed without conceding same, that the appellant administered rat poison to a coke for the deceased to drink, the prosecution must still be able to prove by credible medical and scientific evidence that rat poison can kill a human being particularly a boy of the age of the deceased or more importantly that the deceased died of ‘rat poison poisoning’. He referred again to Akinfe v. State (supra) at 745 F. He finally on the point submitted that the learned trial judge erred when he held that the deceased died of acute encephalopathy which was due to poisoning. He felt that the cause of death in this case was not proved at all and where the cause of death in a case as herein has not been proved, the inquiry ought not to proceed any further. He cited the case of Oforlete v. State (2000) F.W.L.R. (Pt. 12) 2081 at 2104.
On behalf of the respondent, the learned DPP who settled the brief observed that in proving the cause of death of the deceased, the prosecution tendered exhibits 1 and 1A through P.W.4 without any objection by the defence. He asserted that a critical analysis of exhibit I will clearly reveal that emergency treatment given to the deceased at the hospital eliminated some other probable ailments that could have caused the death of the deceased. He maintained that the deceased was treated and according to him such eliminated meningitis. He felt that the deceased was treated with intravenous quinine for possible malaria and cerebral malaria was eliminated.
Learned DPP felt that the learned trial judge painstakingly and with so much thoroughness considered exhibits 1 & 1A and justifiably came to the conclusion that the deceased died of acute encephalopathy. He opined that the learned trial judge put the issue of the cause of death beyond any equivocation when he held that ‘failure to perform post-mortem examination or an autopsy nor the failure to send the blood or urine of the deceased for toxicology screening is not fatal to the proof of establishing the cause of death in this case. I have no doubt therefore and I so hold that the prosecution had established the cause of death of the deceased in this case’.
Learned DPP finally urged this court to hold that the prosecution proved the cause of death to be acute encephalopathy caused by poisoning. In the appellant’s reply brief, learned counsel maintained that the respondent missed the point. He asserted with force that the point is not whether or not the deceased died of ‘acute encephalopathy’ but rather, the point is that the cause of same was not established with certainty as there was no unequivocal medical evidence before the court limiting the occurrence of ‘acute encephalopathy’ to ‘rat poison poisoning’ alone. He felt that apart from listing some possible causes of acute encephalopathy, the medical report ended with the word etc. which is an abbreviation of ‘et cetera’ meaning ‘and other similar things’, ‘and so on’. He felt that the inference is that the list of things or situations that can cause ‘acute encephalopathy’ is unlimited thereby creating a doubt as to the cause of death; which the court must resolve in favour of the appellant. Again, he referred to Oforlete v. The State (supra).
Learned counsel submitted that the trial judge in a bid to limiting the cause of ‘acute encephalopathy’ to poisoning, embarked on speculation by proffering reason why cerebral malaria and meningitis could not have been the cause of the ‘acute encephalopathy’ which this court must not permit itself to do. He referred to the case of State v. Usman (2004) All FWLR (Pt. 226) 231 at 269 D-F.
A lot of fuss was generated in respect of cause of death. As exhibits 1 and 1A are very crucial, I need to reproduce the contents of both for ease of reference and adequate consideration. Exhibit 1 reads as follows:
“11th March, 1988
The D.P.O.,
Nigeria Police Force,
Owode,
Ogbomoso.
Sir,
MEDICAL REPORT ON MASTER IFEOLUWA AKAJIOFOR COPDCARD NO. 148141)
Master Ifeoluwa Akajiofor (now deceased), a 5-year old boy, first presented in this hospital at about 4 p.m. on 25th February, 1998.
The history given by the grandmother was that of continuous generalized convulsions and intractable vomiting said to have started a few hours before presentation. The patient was said to have left for school earlier that day, healthy.
It was alleged that the symptoms started after the boy drank some potion contained in a bottle of cocacola. This was said to have been given to him by a stranger in his school.
Master Akajiofor presented to the Emergency Room of this hospital after initial therapy at private clinics in town.
Physical examination at presentation revealed a young, febrile child. He was unconscious and having continuous generalized tonic-clonic seizures. His neck was supple and there were no signs suggestive of meningitis. He also had enlargement of his liver and spleen (hepatospenomegaly). A lumber puncture was done and immediate analysis of this was not suggestive of meningitis.
Administration of standard anti-convulsant therapy failed to control his seizures.
The diagnosis was that of Acute Encephalopathy with status epilepticus.
He was admitted and treatment was commenced. Such treatment included intravenous quinine for possible cerebral malaria. Antibiotics were also started. His stomach was lavaged with saline and the effluent obtained had the suspicious smell of a common pesticide.
Result of other investigations done revealed a negative malaria profile and severe leucopenia. Seizures, however, continued and were resistant to control by standard anticonvulsant therapy. Ifeoluwa’s condition steadily deteriorated. He never regained consciousness and eventually succumbed to his illness.
He was certified dead at 10.15 a.m. of (sic) on 26th February, 1998 less than 24 hours after initial admission.
Yours sincerely,
(Sgd.)
Dr. I. O. Akinjise.”
From the tone of exhibit 1A, the Police requested the hospital authority to specifically indicate the cause of death of Master Ifeoluwa Akajiofor. The Police appear to be on firm ground in making their request as there is no specific cause of death of Master Ifeoluwa Akajiofor stated in exhibit 1 reproduced above. The reply to the desire of the police is exhibit 1A which reads as follows:
“6th April, 1998
The Assistant Commissioner of police
Through: the Officer in Charge of Homicide,
State C.I.D.,
Ibadan.
Sir,
RE: MEDICAL REPORT ON MASTER IFEOLUWA AKAJIOFOR (DECEASED)
This is to acknowledge your letter dated 1st April, 1998.
In it you requested that we specifically indicate the cause of death of Master Ifeoluwa Akajiofor.
This present letter is to confirm the veracity of the earlier Medical Report dated 11/3/98.
Once again, I report that the deceased, Master Ifeoluwa Akajiofor, a boy said to be about 5 years old, was brought to this hospital at about 4.00 p.m. on 25th February, 1998. He presented with continuous convulsions and vomiting which had started a few hours earlier. The grandmother, who gave the history, alleged that symptoms started soon after the child drank some poison contained in a bottle of coca-cola. This was said to have been given to the child by a stranger in his school.
The other details of the history, clinical evaluation and course of patient’s illness are as stated in the earlier report.
The patient died on 26th February, 1998 and was certified dead at 10.15 a.m., less than 24 hours after initial admission.
The cause of death cannot be stated more specifically than has already been done. This is because: (1) No autopsy was performed on the patient. (2) The patient’s blood and urine were not sent for toxicology screening because facilities for such are not available in our hospital in Ogbomoso town or in the whole of Oyo State. The best we can state is that the patient died of Acute Encephalopathy. This could have been due to poisoning, as alleged by the grandmother, viral infection or some other severe insult like cerebral malaria, as is quite common in our environment. Acute Eucephalopathy refers to a constellation of clinical symptoms and signs which occurs (sic) when the brain has suffered an acute insult. Some of the possible causes are viral infection, drug overdose, malaria, poisoning etc.
Once again, thank you for your co-operation.
Yours sincerely,
(Sgd)
Dr. I. O. Akinjise.”
It is clear to me that from the contents of exhibits 1 and 1A, the two medical officers to wit: P.W.4. who testified and Dr. I. O. Akinjise who issued both exhibits were not certain on what caused acute encephalopathy which refers to a constellation of clinical symptoms and signs which occur when the brain has suffered an acute insult. Some of the possible causes, as given in exhibit 1A, ‘are viral infection, drug overdose, malaria, poisoning etc.’ As experts, they could not pin-point the real cause of death because no autopsy was performed on the patient. As well, the patient’s blood and urine were not sent for toxicology screening because facilities for such are not available in Ogbomoso and the whole of Oyo State as stated in exhibit 1A.
The doctors were honest as they refused to commit themselves in a fluid situation. They were not certain of the real cause of ‘acute encephalopathy’. I salute them for their courage for standing as men of conscience.
It appears that the learned trial judge attempted, to no avail, to limit the cause of ‘acute encephalopathy’ to poisoning. By so doing, he attempted to embark upon speculation by proffering reasons why cerebral malaria and meningitis could not have been the cause of the ‘acute encephalopathy’. A judge should not surmise in an area where he must rely on medical and scientific expert evidence. The learned trial judge, is a judge simpliciter and not a medical expert who can rationalize and surmise the cause of death as he tried to do. He should not have attempted to cross the line to the medical field which is not his own realm. I do not subscribe to such speculation, rationalization or summation as embarked upon by the trial judge. See State v. Usman (supra) at p. 269.
I am of the considered view that the cause of the ‘acute encephalopathy’ was not established with certainty as there was no unequivocal medical evidence before the court limiting the occurrence of ‘acute encephalopathy’ to ‘rat poison poisoning’ alone. The possible causes of same listed in Exhibit IA ended with the use of the word ‘etc’ which is defined to be an abbreviation of the word ‘et cetera’ meaning ‘and other similar things’, ‘and so on’. The inference of this is that the list of things or situations that can cause ‘acute encephalopathy’ is unlimited thereby creating a doubt as to the cause of death. This court must resolve same in favour of the appellant. This is because this court is a court of law and not of sentiments.
Since the cause of death of the deceased has not been pin-pointed with certainty, the enquiry ought not to proceed any further as stated by Ayoola, J.S.C in Oforlete v. The state (supra) at p. 441. But since this is an intermediate court, I shall try to treat, albeit, briefly the sub-issue as to who caused the death of the deceased.
Learned counsel for the appellant observed that the prosecution called P.W.1, the grandmother of the deceased; P.W.2, the headmistress of the deceased’s school and P.W.3, the owner of the shop where the coke was alleged to have been bought. He maintained that as they were not eyewitnesses, their evidence is hearsay and inadmissible. He cited Pius Achora v. Att. Gen. Bendel State (1990) 7 NWLR (Pt. 160) 93 at 98. He felt that since the apprentice of P.W.3 to wit: one Comfort Faniyi from whom coke was allegedly bought was not called by the prosecution, section 149(d) of the Evidence Act should operate against the Prosecution.
Learned counsel observed that the learned trial judge relied heavily on exhibit 3. He agreed that the law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive, is sufficient to warrant conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. He cited Idowu v. State (2000) 7 SCNJ 245 at 259. However, the practice is to look outside the confession for some evidence, however slight, of confirmatory circumstance, more especially as the appellant retracted the statement in Exhibit 3. Learned counsel felt that there is nothing in the evidence of P.W.1, P.W.2 and P.W.3 that can serve as corroboration of the confessional statement – Exhibit 3.
Learned counsel felt that it was wrong for the prosecution to fail to investigate the plea of alibi put up by the appellant. He felt that such failure created a reasonable doubt which should be resolved in favour of the appellant. He referred to Balogun v. Att. Gen. Ogun State (2001) FWLR
(Pt. 78) 1144 at 1159.
Learned counsel submitted that the appellant was consistent and unshaken in her evidence in court and in exhibits 2, 4 and 5 and same point to the fact that contrary to the learned trial judge’s conclusion, the appellant does not have the opportunity to commit the offence having not known the deceased in person.
He finally urged us to allow the appeal and set aside the conviction and sentence of the trial court.
Learned DPP observed that the learned trial judge relied, inter alia, on Exhibit 3, the confessional statement, to find that the appellant committed the offence charged. He referred to section 27(1) & (2) of the Evidence Act Cap. 112, Laws of the Federation of Nigeria 1990; Yahaya v. State (2005) 1 N.C.C. 120 at 134. He maintained that an accused person can be convicted based on his confession and that there is no law against it. He felt that there must be some evidence of circumstances which made it probable that the confession was true. He cited Ubierlo v. State (2005) I N.C.C. 146 at 153, R v. Sykes (1913) 8 CAR. 223 at 236. He opined that the learned trial judge felt satisfied that there are things outside the statement to show that it is true. He highlighted what P.W.5 and P.W.6, Investigating Police Officers said they heard from some people during the course of their investigation.
Learned DPP felt that the confession in Exhibit 3 is enough to demolish the plea of alibi. He referred to Yanor v. The State (1965) 1 All NLR 193. He maintained that D.W.2 was disbelieved by the learned trial judge and this court should uphold same. He cited the case of Ekpo v. State (2003) FWLR (Pt. 166) 670 at 681.
Learned DPP finally submitted that the prosecution proved the guilt of the appellant beyond reasonable doubt and urged that the conviction and sentence of the appellant should be affirmed while the appeal should be dismissed.
Let me start with the buying of coke. It was alleged that one Comfort Faniyi, the apprentice of P.W.3 sold the coke out to the ‘stranger’. She was not called to give direct evidence and be adequately cross-examined. I feel tempted to say that she was not called by the Prosecution since they feel that her evidence will be unfavourable to them. See The State v. Emine (1992) 7 NWLR (Pt. 256) 658.
The evidence adduced by P.W.2 and P.W.3 on buying a bottle of coca-cola by a ‘stranger’ is hearsay. The object of the evidence is to establish the truth of what is contained in the statement and so, it is hearsay. The evidence of P.W.2 and P.W.3 is hearsay and inadmissible. The evidence must be disregarded. See Achora v. AU. Gen. Bendel State (1990) 7 NWLR (Pt. 160) 90 at 98.
There is no doubt about it that the learned trial judge placed utmost reliance on Exhibit 3, appellant’s confessional statement. It is basic that a free and voluntary confession of guilt made by an accused person, if it is direct and positive, is sufficient to warrant a conviction if the court is satisfied of the truth of the confession. This is because no one wants to incriminate himself. However, it is the practice to look outside the confession for some other evidence; however slight, of confirmatory circumstance more especially as the appellant retracted her statement in Exhibit 3.
I agree that there is nothing in the evidence of P.W.1, P.W.2 and P.W.3 that can serve as corroboration of the confessional statement – Exhibit 3. I cannot see how a melee and commotion after the news of deceased’s ailment serves as corroboration. The evidence of P.W.2 and P.W.3 equates to hearsay and I had cause to reject same.
The prosecution failed to investigate the plea of alibi put up by the appellant. Alibi means elsewhere. It is the duty of the Prosecution to investigate same once the appellant furnished particulars of the plea of alibi. Failure to investigate will, ordinarily, cast some doubt and can lead to acquittal. See Yanor v. State (surpa); Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113; Gachi v. State (1973) 1 NMLR 331; Odu & anr v. State (2001) 10 NWLR (Pt. 772) 668.
It was not proper for the prosecution to refuse to investigate the plea of alibi put up by the appellant. The veracity of same should have been explored. This is more so since the appellant said she was in company of D.W.2, junior sister of the appellant’s husband. One is at a loss for the serious lapse created by the prosecution in this respect.
Learned trial judge relied on the evidence of P.W.5 and P.W.6 on facts which they heard from other ‘would be witnesses’ P.W.5 at page 63 lines 19-22 of the record of appeal said:
“Through an investigation, I went to the school of the deceased and took statement from the headmistress of the school. I heard that an apprentice to the designer sold mineral, a bottle of coke to the accused person…”
On his own part, P.W.6 at page 85 from lines 13-16 of the record of appeal said:
“I contacts (sic) the witnesses and investigated from them and the witnesses indicted her, they all said that she was the one who came to the school and bought a coke for the boy in a shop very close to the school.”
The above reproduced evidence of what they heard from prospective witnesses amount to hearsay. They did not relate to what they saw and observed during their investigation which is not hearsay. See Ekpo v. State (2001) FWLR (Pt. 55) 454 at 464. Such evidence should have been disregarded. It was erroneous of the learned trial judge to bank on same as corroborating the confession in Exhibit 3.
The learned trial judge found that the appellant’s evidence in court contradicted the statements of the appellant in exhibits 2, 4 and 5. The crux of the appellant’s evidence is “I do not know Ifeoluwa in question…”
The appellant appears to be consistent in her evidence in court and in her extra judicial statements in exhibits 2, 4 & 5. The tests applied by the learned trial judge to find corroboration for the confession in Exhibit 3 do not hit the required mark; I am afraid.
It has been shown that the cause of death was not clearly ascertained. There is no certainty in respect of same. Apart from the salient point, the case of the prosecution is shrouded with doubts here and there. The Prosecution’s case is anchored on basically hearsay evidence. It is agreed that proof beyond reasonable doubt is not proof beyond all iota of doubt.
See Nasiru v. State (1999) 2 NWLR (Pt. 589)87 at 98. It is not proof to the hilt. See Miller v. Minister of Pensions (1947) 2 All ER 372 at 373.
However, this is a case in which a vital ingredient of the offence of manslaughter to wit: cause of death was not ascertained with certainty. I find that the Prosecution failed to prove the case beyond reasonable doubt.
I have no hesitation in coming to the conclusion that the appeal is meritorious and it is hereby allowed. The conviction and sentence passed by the learned trial judge on 10th May, 2001 are hereby set aside. In their place, the appellant is hereby discharged and acquitted forthwith.
Other Citations: (2007)LCN/2291(CA)
