Emwenya Vs Attorney-general Of Bendel State (1993)

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BELGORE, J.S.C. 

On 31st day of December 1984, one lady by name Queen Ero, now deceased, was going to buy bread and was accompanied by her sister Esole Ero (P.W.6) As they were going on the road they got to a place by the front of the house of the appellant, Corporal Andrew Emwenya, when an accident occurred involving the daughter of the appellant and a car driven by a woman.

The accident attracted a crowd including the mother of the appellant who came out of the house to see her grand-daughter who sustained a broken leg in the accident. The deceased and her sister (P. W.6) helped the woman driver of the accident car to dispatch the girl to the hospital. After the departure of the victim of the accident and the car from the scene, the mother of the girl was crying and the deceased followed her towards the house commiserating with her.

At this juncture, the appellant who never saw the accident and probably only heard of it, arrived at the scene and asked the deceased whether she was the driver of the car involved in the accident that injured his daughter. The deceased answered in the negative and went further to explain that she and her sister were only trying to help and as neighbours they were there trying to calm down the appellant’s mother who was crying and to see her into the house. There and then the appellant slapped the deceased whereby she fell down; as she was on the ground the appellant hit her with a hammer he was holding on her chest, kicked her and stamped on her stomach. The deceased was shouting for help whereby her sister, P.W.6, rushed to their house nearby to inform their parents of what was going on. The P.W.6 returned to the scene with their mother, P.W.4 and people who were attempting to revive the deceased who was unconscious. There P.W.4 challenged the appellant who in turn threatened her after some altercations, with iron rod. P.W.6 and P.W.4 then carried the deceased to the hospital where she was pronounced dead.

The appellant, a soldier, disappeared for three years from Benin City and efforts to trace his unit was futile. When he sneaked into the city three years later, he was apprehended. He denied ever attacking anybody and said he could not remember seeing either the deceased or the P.W.6 at the scene of accident where his daughter was hit by a vehicle. All he remembered was that on 26th June, 1988, when he was at his house some persons came and alleged that he was the one that killed Queen Ero and they beat him up, tore his uniform and removed his army identity card after removing N343.00 from his pocket.

At his trial at the High Court, Benin City, learned trial Judge, Akpiroroh J, after a thorough review of the whole evidence for prosecution and defence found as follows:

“After a careful review of the entire evidence as to how the accused beat the deceased to death. I am not satisfied that there was any conduct of the deceased which could provoke the accused to beat the deceased to death. There was no doubt that the intention of the accused was at least to cause grievous bodily harm to the deceased when he started to march, kick and hit her on her chest with a hammer he was holding as borne out from the evidence of P.W.6. In my opinion there was the clear intention by the accused to kill the deceased. I have no hesitation whatsoever in holding that it was the continuous assault of the deceased by the accused that caused her immediate death on the spot. I totally reject the defence of the accused person and I am quite satisfied that P.W.6, the only eye witness who testified for the prosecution spoke the truth when she said that it was the accused person who beat the deceased to death on that fateful day.”

and thereby convicted him and sentenced him to death.

On appeal to Court of Appeal on the general ground, learned counsel formulated three issues all revolving around proof beyond reasonable doubt and the failure to prove with certainty the cause of death. The Court of Appeal dismissed the appeal and hence the appeal. Learned senior advocate, Orobiyi Rhodes argued what I regard as a general ground which runs as follows:

“GROUND OF APPPEAL

1.The Court of Appeal erred in affirming the judgment and conviction of the trial Court when the prosecution did not prove its case beyond reasonable doubt.

PARTICULARS OF ERROR

(i) The Learned Justices of the Court of Appeal erred when they affirmed the conviction and sentence of the accused person on evidence of P.W.6 a sister to the deceased whose evidence did not prove the cause of deceased’s death neither did her evidence explain how the accused got the hammer which he used to attack the deceased.

(ii) The Learned Justices of the Court of Appeal erred when they stated that a weapon which an accused used in causing the death of a deceased is not material when it held thus

‘IN MY VIEW, WHETHER THE INSTRUMENT USED TO HIT THE DECEASED IS CALLED A HAMMER OR IRON MAKES LITTLE DIFFERENCE AS ONE INSTRUMENT CAN BE DESCRIBED BY DIFFERENT WITNESSES WITH DIFFERENT NAMES. THERE IS NO REASON WHY A HAMMER MADE OF IRON CAN NOT EQUALLY BE CALLED AN IRON ROD’.

In his Brief of Argument for the appellant he formulated the following issues for determination:

ISSUES FOR DETERRMINATION

1. Whether in the absence of medical evidence relating to the cause of death, the weapon used, and the nature of the wound inflicted on the deceased, it is possible to infer the cause of death from the surrounding circumstances
2. Whether the Court of Appeal was right when it ruled that the weapon used to cause death is immaterial
3. Whether it is safe to convict the accused, when it was not shown that the deceased died on the spot and when the Court was shielded from knowing the truth, as the prosecution could not explain why the matter was not reported to the Police at the earliest possible time and when records of such report were not tendered in Court
4. Whether it is safe for the Appeal Court, like the trial Judge to uphold the conviction of the accused person based on the sole evidence of P.W.6, when all other material witnesses were not called to testify before the trial court and especially as P.W.6 is a relative of the deceased

In a murder case, for the prosecution to prove its case in certain cases, it must produce evidence that the victim of the offence not only died but also the cause of death and it was the act of accused person that caused that death. The cause of death is easily proved by evidence of witnesses who saw the very act that caused the death or in some cases of injuries to the victim, the medical evidence if available, of the doctor who examined the corpse and proffers opinion as to the cause of death. This is a peculiar case that must be determined in its own circumstance. The appellant disappeared for over three years after the alleged offence and the medical officer who performed the post-mortem examination had left the country finally, he being a foreigner. But in the absence of medical evidence, there must be other evidence to connect the appellant with the death of the deceased. The appellant’s behavior was completely unjustified. The deceased, a sympathetic passer-by when a vehicle hit the daughter of the appellant, without any provocation was attacked by the appellant. He first slapped her and she fell. Whilst on the ground he hit her with a hammer having sharp edges and the hitting was on the chest. He kicked or stamped his feet on her and by the time P.W.6 who witnessed all these could call the mother, P.W.4 to the scene, the deceased was unconscious. She died by the time she was rushed to the hospital. In a circumstance as this, no medical evidence, which would be at best strong opinion, was necessary as to the cause of death. By its nature a hammer is a lethal weapon, whatever the size. [See Ikemson v. The State (1989) 3 NWLR (Pt.110) 455; Bature v. The State (1991) 5 NWLR (Pt.194) 697, 708]. Much emphasis seems placed on the alleged contradiction in the evidence of P.W.6 and P.WA. There was no contradiction. P.W.6 saw the appellant’s attack on the deceased and P.W.4 arrived at the scene after the attack when efforts were being made to revive the deceased who was unconscious. The P.W.6 saw a hammer, with sharp edge, used to hit the deceased on the chest; the P.W.4 went to the appellant at his door after the attack and she was threatened with an iron rod.

Much is made of the fact that P. W.6 a sister of the deceased is the sole witness of the attack by the appellant. It is true it is not safe to convict on uncorroborated evidence of a tainted witness. [See Okolo v. The State (1974) 2 SC.82; Idahosa & Anor. v. R. (1965) NMLR 85, 88]. But nothing in the whole evidence on record showed the witness was confronted with the fact that she could be an interested party who wished somebody held responsible for the death of her sister.

From the brutality of the attack by the appellant on the deceased in an unprovoked manner and using of hammer, hand and kicking while she fell on the ground and her falling unconscious right on the spot, the cause of death could be inferred. [Ogundipe & Ors. v. R XIV (1954) WACA 458; Eric Uyo v. Attorney General Bendel State (1986) 1 NWLR (Pt. 17) 418, 432 Okoro v. The State (1998) 5 NWLR (Pt.94) 255]

I find no merit in this appeal and I accordingly dismiss it. The decision of the Court of Appeal affirming the conviction of the appellant by the trial High Court is hereby upheld.

UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother Belgore, J.S.C. For the reasons which he has given I too will dismiss the appeal and it is hereby dismissed.

Other Citation: (1993) LCN/2557(SC)