Matthew Oke Onwumere V. The State (1991)

LawGlobal-Hub Lead Judgment Report

O. I. AKPATA, J.S.C. 

This appeal raises a number of legal issues, prominent amongst which is the question whether when a post-mortem examination has been performed medical evidence becomes imperative to establish the cause of death, regardless of other credible evidence pointing to the cause of death.

The accused, Matthew Oke Onwumere, was arraigned before the Umuahia High Court charged with the unlawful killing of Titi Ajuobi at Usakaukwu Iriam Ikwuano on the 28th day of October, 1977, an offence punishable under section 319(1) of the Criminal Code Laws of Eastern Nigeria, 1963.

The simple facts of this case, which were accepted by the trial Judge, are that the deceased, Titi Ajuobi, was on her way home from the market in company of three or more other women when she was attacked with a “stick” by the accused, now the appellant. The deceased died virtually at the scene of the incident following the attack. Although no medical evidence was available to ascertain the cause of death, the learned trial Judge was satisfied that the accused was guilty of the offence of murder and sentenced him to death. The accused had made a confessional statement to the police the contents of which he retracted in his defence at the trial.

The appeal of the accused against his conviction to the Court of Appeal was dismissed. He has now appealed to this Court on a number of grounds. Before I advert to the nature of the complaints against the judgment of the Court of Appeal, it is necessary I set out in fuller detail the facts of the case and the legal defences proffered by the defence.

It was the case for the prosecution that on the 27th October, 1977, the deceased was on the road returning from Ariam Market in company of Alagwonu Usuwa, (P.W.2), Nwanaro Nnochiri, (P.W.3), and other women when they came across the appellant who told them not to pass through the road. In furtherance of his order to the women, he hit P.W.2 on the hand with a stick. This attack prompted the women to run to a nearby compound, that is, Inekpe’s compound and took refuge in a room there. The appellant in pursuit, damaged the door leading to the room with a “big stick” and caught up with the deceased who could not escape through the back door as the other women did.

According to P.W.2, before she ran into the bush through the back door, she saw the appellant hitting the deceased with a stick, and while in the bush she heard the deceased shouting that “Oke Onwumere (the accused) has killed me”. The stick with which he hit the deceased was bigger than the stick he had earlier used on herself, P.W.2. When later on the same day, P.W.2 and P.W.3 came out of the bush they found the deceased dead and her corpse lying in the same Inekpe’s compound.

On 28th October, 1977, the following day after the incident, P.W.5 Sgt. Felix Nwosu served a coroner’s form on Dr. A. B. Chukwuezi of Ramat Specialist Hospital, Umuahia who subsequently performed a post-mortem examination on the corpse of the deceased. The doctor was however not available to testify at the trial of the accused because he had travelled out of the country for further studies. The corpse of the deceased was identified to the doctor by P.W.6, Samuel Ajuobi, a brother of the deceased. The defence objected successfully to the tendering in evidence of the autopsy report made by Dr. Chukwuezi.

P.W.5 arrested the accused on the same day 28th October, 1977, and he made the statement Exhibit B. in Ibo language. The accused confessed in the English version of the statement, Exhibit C., to the police thus:

“I know Titi Ajuobu. She is from Ndijeagwa Usakaukwu. On Nwo Ariam Market day, when I was spreading the gospel, people saw me, and I told them to pass and they came and passed. Sunday Usuwa called me and I came to him. When he showed me his sick child, I prayed for him. When I came back, I started looking for those women who ran away when they saw me; and I found them. I asked they why they were running and they said that I was mad. I told them to come out of the house and they refused. I used a stick in damaging the door shutter and started chasing them. The people I chased were Nwebu James (f), (2) Alabonu Usuwa (3) Nwanaro Onuoha Nnochiri and Titi Ajuobu. The place I damaged the door shutter was in the house of Inekpe Ogwuta of Nkumokpo Usakaukwu, when I had chased out three other women. I started searching for Titi. When I came back, I saw her in the house of the wife of Inekpe’s son. I flogged her with a stick. When I flogged her she shouted “Chinekee”, Chinekee”, I started hitting her with a club, I pushed the club into her virgina: (sic). I told her that her virgina, (sic) which she said nobody would sex has been sexed today. She was there crying and I left her and went away.

It was last year that I went to her to demand to have sexual intercourse with her and she refused saying that she never liked my attitude. I approached her with wine but she still refused. When I reached home, it was said that I had killed Titi but I told them that she was not dead. When they said that she had died, I went to the place where I knocked her down but I did not see her, so I came home and slept. The Amalas came and held me and tied me, leg, ironed me and carried me to police station Ariam.”

As Exhibit B was a confessional statement it was taken along with the accused to the Divisional Police Officer Ikwuano, Sylvester Ekeocha, P.W.1, who read over the statement to the accused person in Ibo language. He admitted making the statement and said it was made voluntarily without any promise or threat. P.W.1 endorsed it accordingly. The endorsement is Exhibit’ A’.

In her evidence, P.W.2 claimed that the accused who was married with children was normal and that he did not suffer from any mental trouble. P.W.4 Manzu Abaroha, an uncle of the accused, also made the point that the accused was not a mad man. He however added that there was a time in 1977 when the accused was ill and that certain members of a church prayed for him and that he recovered. Under cross examination he answered thus:

“The accused drinks excessively. There are so many drinking bars in our village and on that day of the incident, the accused could have taken a lot of drinks”.

In his defence, the accused testified as DW.1 and called two other witnesses. It was his case that on the date of the incident, he was walking along the road when the deceased and others who knew that he was “sick” jeered at him and called him a mad man. They also beat him. He had no option but to use the stick he was holding to fight back. He hit the deceased with the stick on her arm. He continued his evidence thus:

“The villagers were alerted that I had killed someone but then I did not know myself. Apart from hitting the deceased with the stick I did not do any other thing. I am not happy about what I did, now I realise what I did. The deceased was my in law. I am alright now. I did not hit the deceased because she and others called me a mad man but because I was ill then and do not know what I was doing. I heard when the deceased and her companions called me a mad man and I did not like it.

Because of this I pursued them with a stick and hit the deceased with it. The stick was my walking stick with which I support myself when walking.

When I hit the deceased, she did not die there but was carried to the compound of Elekpe Ogute from where she was taken to Queen Elizabeth Hospital Umuahia where she subsequently died. I did not brake any door but the door from where the deceased and others ran away was a broken door. I did not push stick in the vagina of the deceased.”

D.W.2, Chinyere Samuel, and D.W.3, Marizu Abaraoh, only testified as to the mental and physical condition of the accused before the incident D.W.2 testified thus:

“I know the accused. Some times in 1977 the accused died twice and twice rose from dead. Before then he has been normal from his youth. After dying and rising in 1977, the accused went about with Bible preaching and reading people’s palms. I am related to the accused. He is my cousin”.

D.W.3 had this to say in his evidence:

“I know the accused. There was a time the accused was sick and died. The Church members came to bury him but he woke up. Since then where-ever he goes they call him a mad man. He went about around, anybody he got on the way who called him a mad man he would hit the person with the stick. Any time he was called a mad man, he would be provoked and chase the people”.

In his judgment the learned trial Judge Ononuju, J. was satisfied that the evidence of P.W.2 and P.W.3 and the confessional statement of the accused clearly established that the accused killed the deceased. He was of the view that it was safe to convict without medical evidence as to the cause of death and that the fact that the accused in the witness box “tried to detract from his statement in Exhibit A is immaterial”

The learned trial Judge was also of the firm view that the onus of proving insanity was on the accused who should bring evidence to satisfy the court that he was insane at the time of committing the offence. He held that the evidence of D.W.2 and D.W.3 did not establish insanity as envisaged by law. He rejected the defence of provocation. He did not believe that any of the women called the accused a mad man, and that even if they did it was not sufficient to warrant the killing of the deceased. The accused was accordingly sentenced to death by hanging.

As already pointed out, the appeal of the accused to the Court of Appeal was dismissed. A total of thirteen original and further grounds of appeal were first filed. Subsequently, leave was granted the accused, herein after to be referred to as the appellant, to file and argue one additional ground of appeal. It was only the additional ground of appeal that was treated in the appellant’s brief of argument and canvassed in the oral submission at the hearing of the appeal in the Court of Appeal. The three issues formulated in that Court in the appellant’s brief as arising from the only ground argued, which were adopted in the respondent’ s brief, were as follows:

“(i) Whether this is a proper case in which the court can safely convict on the evidence in the absence of medical evidence as the cause of death.

(ii) Whether in the absence of such medical evidence it can be said that proof was established that the appellant killed the deceased.

(iii) Was not the attitude of the trial court unduly influenced by the application of the principle of res ipsa loquitur which has no place in criminal proceedings.”

Omosun, J.C.A., in his leading judgment (concurred in by Jacks and Kolawole, J.C.A), expressed the strong view that where the cause of death is obvious medical evidence ceases to be of any practical or legal necessity in homicide cases. Like the trial judge, the learned Justice of the Court of Appeal adverted to the fact that the appellant made a free and voluntary confessional statement which was corroborated in material particulars by P.W.2 and P.W.3, and that the confession and evidence from the prosecution witnesses were consistent with the fact that the appellant caused the death of the deceased. Omosun, J.C.A., also went on to hold that the non-production of the stick used by the appellant was not fatal to the prosecution’s case. He agreed with learned counsel for the appellant that the principle of Res Ipsa Loquitur does not apply to criminal trials. He was

however satisfied that no where on the printed record was the principle applied. The learned Justice of the Court of Appeal concluded thus:

“The appellant is presumed to intend the natural and probable consequences of his action by heating (sic) the deceased with a stick and thrusting it into her vagina when she fell down as a result of the beating. The assault was continuous from the road, chased her to Inekpe’s compound where he caught up with her. He must in my view have intended the natural and probable consequences of the assault and by reason of Sub-Section (2) of Section 316 of the Criminal Code a person is guilty of murder if he intends to do the person killed some grievous harm, The assault which he committed on her was of such a nature as to be likely to endanger human life.”

The appeal was dismissed and the judgment of the trial judge affirmed.

Two grounds of appeal were filed. As they are not prolix and the particulars supplied tend to pin-point the grievance of the appellant, I shall set them out fully. They read:

(i) The learned Justices of the Appeal Court erred in law in convicting the appellant for murder in the absence or failure of sufficient or satisfactory evidence of the requisite Mens rea to sustain that offence.

Particulars of Error

(a) Even though there was evidence that the appellant hit the deceased with a stick, neither the lethal nature of that stick nor the intensity with which the assault was inflicted, was supplied in evidence, to enable the Court reach a determination of the seriousness thereof or the terminal nature of the assault, as would support a finding of an intention in the appellant, to do her grievous harm.

(b) The only eye witness account of the incident – P.W.2 was that the appellant chased the deceased into a house and hither with a stick until she died (although she did not see her die). That stick was however, not produced at the trial as would inevitably assist the Court.

(c) Although the appellant’s statement talked of pushing the stick into the deceased vagina he clearly denied that at the trial but the trial Judge made no specific finding on the issue, despite the appellant’s contention that he only hit the deceased on the arm (Italics ours)

(d) In that setting the worst that would have happened to the appellant was a conviction for Manslaughter.

(ii) The learned Justices of the Appeal Court erred in law in upholding the conviction and sentence of murder when the cause of the death was not clearly established as proceeding from the appellant.Particulars of Error

(a) Evidence disclosed at the trial show that the deceased did not die at the spot or even soon after the attack, and there was infact no single piece of evidence as to when she died.

(b) None of the findings of the Appeal Court in its Judgment that the attack on the deceased was severe OR that she fell unconscious or that she died less than 24 hours after admission in hospital,

appears, with respect, to be supported by the evidence on the records.

(c) Although a post mortem examination was done to determine the cause of death, no evidence was called al the trial to establish this most vital element.”

Three issues identified in the appellant’s brief as arising for determination in this appeal read:

(i) Whether this is a proper case in which conviction and sentence could be sustained in the absence of medical evidence as to the actual cause of death

(ii) Whether on the evidence it can be said that proof of murder was established on the requisite standard, or that the appellant killed the deceased

(iii) Should the proper verdict on the evidence not have been one of Manslaughter instead of murder

It can be seen that the first two issues are in pari materia with the first two issues formulated in the Court of Appeal. The complaint that the principle of res ipsa loquitur was applied by the learned trial judge has been dropped. In its place the appellant has canvassed that the proper verdict on the evidence should have been one for manslaughter instead of murder.

In the respondent’s brief the three issues put forward in the appellant’s brief were also adopted as the issues arising from the two grounds of appeal.

It was the contention of Mr. Okolo, learned counsel for the appellant that only P.W.2 claimed an eye witness account of the proximate events leading to the death of the deceased. He submitted that an analysis of her testimony discloses that she took flight “at the imminent aggression and that all she could validly assert was that she heard the cries of the deceased as alleged.” According to learned counsel, no details were offered as to the gravity of the assault either in terms of the stick used or the areas at which the assault was administered.

Learned counsel pointed out that on the contrary there was uncontradicted evidence that he only hit the deceased on the arm. In the absence of any specific evidence of an intention in the appellant to do grievous harm to the deceased and in the absence of any evidence of the stick used as would suggest the risk of grievous harm on the deceased, submitted counsel, a verdict of murder cannot fairly be sustained and that the worst that could happen to the appellant in the absence of medical evidence linking him with the death is a conviction for manslaughter.

Learned counsel also made the point that the Court of Appeal appeared to have been swayed by the confessional statement Exhibit C, in which the appellant claimed he pushed a stick into the vagina of the deceased. According to counsel, since that allegation was denied by the appellant, and the prosecution having failed to cross-examine him on that inconsistency between his evidence at the trial and the extra-judicial statement, it was not open to the trial Court or the Count of Appeal to base reliance on that issue without affording the appellant due opportunity of the necessary explanations, on which to decide which of the two conflicting stories to believe.

Learned counsel finally submitted that where as in this case a post-mortem examination has been performed to establish the cause of death, it is imperative to call that evidence to exclude all or any speculations thereto. In support of this proposition he relied on the dicta of Ogunkeye, J. (as he then was) in the case of The State v. Adegbemi (1968) NMLR. 347.

I must hasten to say, with due respect to counsel, that I find his submission that failure of the prosecution to cross-examine the accused person as to the inconsistency between his confessional statement and his evidence in court was detrimental to the case for the prosecution very tenuous. According to him, the court cannot base its decision in respect of the relevant issue on the confessional statement “without affording the accused opportunity of the necessary explanations.”

It is elementary that calling on an accused person to make his defence is giving him an opportunity to make necessary explanation to absolve himself of the charge against him. It is the function of counsel for an accused person to conduct the case of his client and not the responsibility of the counsel for the prosecution or the court to ask questions to enable the accused, represented by counsel, do so effectively.

If an accused person failed to lead sufficient evidence to rebut the accusation of the prosecution, it would not be the duty of the prosecution to ask questions that would enable him manufacture evidence to fill the gap in his defence. It is a requirement in advocacy to be silent when silence is golden. Failure of counsel to ask questions which may lead to the clarification of the case of his opponent is never held against such counselor his client.

If the accused person resiles from his confessional statement it is his function to explain to the court as part of his defence the reason for the inconsistency. In such circumstances, if he is to be believed, the accused has to lead evidence to establish that his confessional statement could not be correct. It may be that he was not correctly recorded or that in fact he did not make the statement or that he was unsettled in mind at the time the statement was made or that he was induced to do so. The explanation should come from him without promptings from the prosecution. It is in rare cases that a court would attach credence to the evidence of an accused person as against his extra-judicial statement where he fails to show that the extra-judicial statement could not be correct.

As already pointed out, learned counsel relied on the State v. Adegbemi (1968) NMLR 344 as an authority for the view that where a post-mortem examination has been performed to establish the cause of death it is imperative to call the doctor who performed the post-mortem examination to exclude any speculation as to the cause of death. In the case under reference Ogunkeye, J. (as he then was) held at page 350 thus:

“Though it is proper for the court to infer the cause of death from the circumstances when there is no medical evidence, I am strongly of the view that when a post-mortem examination has been performed medical evidence becomes imperative to show the cause of death. To hold otherwise can lead to miscarriage of justice and can encourage the prosecution to withhold unfavourable medical evidence and ask the court to infer the cause of death from the circumstances….. Failure to call medical evidence is fatal to the prosecution’s case, no matter how the failure was caused.” (Italics mine)

Firstly, I must say that the above proposition of the law is too wide and indiscriminate in scope to be valid. The learned trial judge in that case was saying in effect that, if for instance, in the presence of a number of persons an accused person hacked to death someone, and the police took the formal step of having a post-mortem examination conducted on the jagged corpse, and for one reason or another medical evidence of the post-mortem examination was not available at the trial, the court would of necessity hold that the cause of death was not established regardless of credible evidence of eye-witnesses to the brutal killing. This proposition, if valid, would also make it mandatory for a court to conclude that the cause of death has not been established where someone, going by the testimony of eye-witnesses, was crushed to death by a motor vehicle only because the report or evidence of the post-mortem examination was not available at the trial.

Secondly, a legal proposition by a Judge based on the facts before him may be limited in scope in its application if such proposition is not wide enough to embrace facts that are likely to arise in future cases relating to similar legal issue. As Lord Diplock put it in D v. National Society for Prevention of Cruelty to Children (1977) 1 All E.R., 589 at page 596 to 597, “a cautious Judge expresses a proposition of law in terms that are wide enough to cover the issue in a case under consideration. The fact that they are not also wide enough to cover an issue that may arise in subsequent cases does not make his judgment an authority against wider preposition” The proposition of Ogunkeye, J. (as he then was) granted that it is valid, and applicable to the facts of the case before him, cannot reasonably be applied to a situation where a confessional statement establishes the cause of death.

In the case under reference the deceased was killed by gun shot in a hunting expedition. He died before he could be taken to the hospital. P.W.1 claimed to have seen the accused run into the bush holding a gun immediately after the gun shot and the cry of the deceased that he had been shot by the accused. The accused put up a defence of alibi both in his statement and his evidence before the court. He suggested in both that P.W.1 had lied against him because he belonged to the party opposed to him in a land dispute. He called two witnesses in support of his alibi. In effect, unlike the case in hand, there was no confessional statement in that case linking the accused with the killing of the deceased with a gun. There was in fact no direct evidence from any witness that the deceased was shot with a gun.

Medical evidence, though desirable in establishing the cause of death in a case of murder, is not indispensable where there are facts which sufficiently show the cause of death to the satisfaction of the court. See Lori v. The State (1980) 8 to 11 S.C. 81 and Osarodion Okoro v. The State (1988) 5 NWLR (Pt. 94) 255 at page 289. In the case of Garos Bwashi v. The State (1972) 6 S.C. 93 the trial judge rejected the medical evidence given by the doctor who performed the post-mortem examination the ground that there was conflict as to the identity of the body on which the examination was performed. He however drew the necessary inference as to the cause of death from available facts in the case and convicted the accused for murder. The appeal to this Court by the convict was dismissed because this court was of the view that it was impossible to hold that the conclusion reached by the trial judge was unreasonable in the face of the evidence adduced in the case. Bwashi’s case clearly underlines the fact that the cause of death may be inferred from other evidence in the case where medical evidence is not available or has been rejected.

The question now is whether there was sufficient evidence in the instant case establishing the cause of death and whether a case of murder was proved against the appellant. P.W.2 testified that she saw the appellant hitting the deceased with a stick and that while in the bush she heard the deceased shouting that the appellant had killed her. When she came out of the bush later in the day she found the corpse of the deceased in the same premises the deceased was attacked in her presence by the appellant. Added to this piece of circumstantial evidence that the deceased must have died as a result of the beating meted to her by the appellant is the confessional statement made by the appellant.

In his judgment the learned trial judge made the point at page 37 that “it is common ground that the accused beat the deceased several times with his walking stick”. The learned trial judge rightly held, so did the Court of Appeal, that the confessional statement was freely and voluntarily made. The extra-judicial statement which forms a part of the prosecution’s case clearly established the gravity of the assault and the manner of the application of the stick on the deceased. I have already set out the entire statement earlier in this judgment. The material portion relating to the gravity of the assault and the manner of the application of the stick reads:

“I flogged her with a stick. When I flogged her she shouted “Chineke”

“Chineke”, I started hitting her with a club. I pushed the club into her vagina.”

What the appellant did in the absence of any eye-witness was a matter peculiarly within his knowledge. He supplied it. It does not require, in my view, medical evidence or an expert knowledge of the human anatomy for any reasonable adult to know of the susceptibility of a vagina to grievous harm when an object like a stick or club is “pushed” into it.

In most cases, a free and voluntary extra-judicial confession provides the most satisfactory evidence of guilt. It attracts invariably the highest credit because it is presumed to be prompted by the strongest sense of guilt. The presumption, which is generally accepted, is that a rational being will not make admissions prejudicial to his interest and safety if the facts confessed are not true.

I have already alluded to the fact that no scintilla of evidence was proffered by the appellant to explain why he had to make a confessional statement if in fact it was not true. The trial court and the Court of Appeal, in my view, rightly acted on it. In the circumstance, the trial judge was right when he held that “the fact that the accused in the witness box tried to detract from his statement Exhibit A: is immaterial.” The learned trial judge was satisfied that the confessional statement supported the prosecution’s case and was also satisfied of the truth of it. It was corroborated in material particulars by the evidence of the P.W.2 and P.W.3. It was not imperative for the learned trial Judge to make a specific finding whether or not a club was pushed into the vagina of the deceased, after accepting that Exhibit C was voluntarily made and satisfied of the truth of it.

The trial Judge was satisfied from the totality of the evidence before him that the appellant was motivated by revenge and did not believe that any of the women called him a mad man.

He concluded thus:

“Even if the accused was provoked by being called a mad man and nothing more, he had sufficient time to cool down. The women ran away. He chase them, into the Inekpe compound. He continued to chase them, they ran into a house and locked the door. He broke the door, they escaped to the back yard and he continued until he caught up with the deceased and started to flog and hit her with a stick until she died”.

I do not see any mitigating circumstance that would warrant substituting a verdict of manslaughter for murder in the circumstances of this case. Learned counsel for the appellant attacked the following conclusion reached by the Court of Appeal:

“There is overwhelming evidence that the appellant brutally and savagely assaulted the deceased on 27th October, 1977. The testimonies of P.W.2 and 3 refer .P.W.2 saw the appellant hitting the deceased with a stick until the deceased died”.

“It is apparent that the deceased was in an unconscious state and that is as a result of the beating”…

The appellant made a confessional statement which was corroborated in material particulars by the other prosecution witnesses – namely P.W.2 and 3”

According to learned counsel, these passages do not seem to be supported by the facts disclosed in evidence. For instance, there is no evidence that “the deceased was in an unconscious state and that it is as a result of the beating”. P.W.2 could not have seen the appellant hitting the deceased with a stick until the deceased died. The complaint of counsel appears to me valid to some extent. These findings by the Court of Appeal have however in no way led to a miscarriage of justice.

I need to state that the appellant did not, both in the Court of Appeal and this Court, argue against the finding of the learned trial judge that he was not insane. It is therefore unnecessary for me to treat the issue in this judgment. Suffice it to say that the learned trial Judge correctly stated the general law when he said that the onus of proving insanity is on the accused who should bring evidence to satisfy the court that he was insane at the time of committing the offence. The learned trial judge also correctly made the point that for the evidence of insanity to succeed. It must be shown that the accused at the time of killing the deceased was in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he was doing, or of the capacity to control his action or of capacity to know that he ought not to do the act.

On the whole the appeal fails. It is dismissed. The judgment of the Court of Appeal confirming the decision of Onunuju, J., convicting the appellant for the offence of murder is upheld.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brothers Akpata, JSC and I find myself in full agreement with his opinions on all the issues for determination in this appeal. I agree with him that the appeal be dismissed and I hereby adopt his opinions as mine.

Accordingly, I hereby dismiss the appeal and affirm the decision of the Court of Appeal. The conviction of the appellant by Ononuju. J. and the sentence of death passed by the learned trial judge are hereby confirmed.

A. G. KARIBI-WHYTE, J.S.C.: I have read the Judgment of my learned brother Akpata. J.S.C., in this appeal. I agree entirely with his reasoning and conclusions therein, that the appeal be dismissed. I will and hereby accordingly dismiss the appeal. I however wish to make some contribution to the issues argued in this appeal.

Mr. Okolo, learned counsel to the Appellant has formulated three issues as arising from the two grounds of appeal filed. The first ground is a complaint that Appellant was convicted for the offence of murder “in the absence or failure of sufficient or satisfactory evidence of the requisite Mens rea to sustain the offence.” The second ground was on the conviction and sentence of appellant for murder despite the failure of the prosecution to clearly establish the cause of death as proceeding from the appellant.

Mr. Ajuonuma, learned counsel to the Respondent adopted the issues so formulated. Both counsel filed briefs of argument which they have adopted, and relied upon in their oral argument before us.

I consider it necessary to observe that the three issues formulated and relied upon in argument before us are wider than the two grounds of appeal on which they are deemed to have been founded. I have already summarised the grounds of appeal. I now reproduce the issues for determination formulated by learned counsel to the Appellant They are as follows-

“(i) whether this is a proper case in which that conviction and sentence could be sustained in the absence of medical evidence as to the cause of death

(ii) whether on the evidence it can be said that proof of murder was established on the requisite standard, or that the Appellant killed the deceased

(iii) should the proper verdict on the evidence not have been one for manslaughter instead of murder”

The essence of the two grounds of appeal was to support the contention that the charge of murder against the Appellant having not been proved because the requisite “mens rea” was not established, and that the cause of death having not been traced to the act of the Appellant, the conviction for murder was wrong. It seems to me this is the only conclusion that could be derived from the two grounds of appeal.

It is important to point out that it is not in all cases in prosecutions for murder is medical evidence of the cause of death required. Omoruju v. State (1976) 5 S.C. 1, See Ozo v. State (1971) 1 All N.L.R.111. Where medical evidence of the cause of death is required, it is one of the facts to be proved by the prosecution to sustain a conviction for the offence. Accordingly, where in this appeal, learned counsel is formulating issues for determination whether the requisite standard of proof for murder was established on the evidence it was superfluous to have formulated a separate issue for determination of that ingredient.

It is also relevant to point out that although a Court is allowed to convict for the offence of manslaughter in a trial for murder, neither of the grounds of appeal can be said to have directly raised the issue. It seems to me therefore that though the first issue is covered by the second issue and the first ground of appeal, the third issue for determination is not directly covered by any ground of appeal, but involves the exercise of a power in the second ground of appeal.

This court has on several occasions pointed out that issues for determination in an appeal must be formulated to fall within the scope of the grounds of appeal filed. They should not be prolix, and should not include matters not in any of the grounds of appeal- See Egbe v Alhaji (1990) 1 NWLR (Pt 128) 546. The formulation of the issues for determination in this appeal would seem not to have taken into consideration the scope of the grounds on which the judgment of the court below was being challenged. The issues for determination must be confined within those limits and no more. To expand the issues beyond the frontiers of that scope would be criticising and challenging the judgment of the Court below for what it neither said nor did. See Egbe v. Alhaji (supra). It is of considerable importance for counsel formulating issues arising out of grounds of appeal to bear the above guiding principles in mind and adhere to them strictly. Accordingly only the first and second issues for determination can be said to have arisen from the two grounds of appeal filed. I shall in this judgment confine myself to these issues.

The facts of this case are quite simple and straight-forward. Much of them remain uncontroverted. It is however relevant to mention that the findings of fact of the trial Judge were accepted by the court below; which also affirmed the conviction and sentence. The facts of this case are as follows-

The charge against the accused/appellant was that he on the 27th day of October, 1977 at Usakaukwu, Ariam, Ikwuano in the Umuahia Judicial Division murdered one Titi Ajuobi.

The evidence in support of this charge was that on 27/10/77, the deceased in the company of Alaguonu Usuwa, Nwebu James and other women were in the afternoon, returning from Ariam Market. They saw appellant with stick in his hands and standing in the centre of the road, threatening to assault anyone who dared pass by him. The women including the deceased to avoid being assaulted by the appellant ran into a nearby compound. Appellant ran after them. The women ran into a house and locked the door against the Appellant. Appellant still in pursuit endeavoured to and actually forced the door where the deceased and other women were, open. Before the Appellant forced the door open some of the women had escaped through a back door. Appellant caught up with the deceased before she could escape from the room and dealt her several blows with the stick. She fell down and became unconscious. The Deceased was taken to the Ramat Specialist Hospital, Umuahia where she died in under 24 hours.

The medical report of the post-mortem examination on the body of the deceased, could not be admitted in evidence because the Doctor who performed the examination was not available to give evidence and be cross-examined on it.

Appellant gave evidence in his own behalf and called two witnesses after a medical evidence from the psychiatric Hospital, Aba certifying his fitness to stand trial had been admitted in evidence. In his evidence, which substantially corroborated the evidence of the prosecution witnesses appellant stated that the women started to beat him, with stick, and he had to fight back with the stick in his hand. He admitted beating the deceased with the stick. It is more appropriate to reproduce the relevant portion of the learned trial Judge’s recording of the defence.

“…He testified he knew the deceased who was his own townswoman and in-law. He said he was walking along the road when the deceased and other women met him on the road and called him a mad man. These women include the deceased. P.W.2 and P.W.3. Before the incident members of Methodist Church had prayed for him and he went out and the deceased and others who saw him on the road started to jeer at him. He was then going to the house of one Sunday Osuwa. These women started to beat him with stick and he had to fight back with his stick and hit the deceased with stick on the hand. Then he did not know himself but heard when the villagers were shouting that he had killed the deceased. Apart from hitting the deceased with a stick, he did not do any other thing. He said he was sorry for what he did now that he realised what happened. Then the accused changed and stated he did not hit the deceased because she and others called him a mad man but because he did not know what he was doing. He said again he heard when the deceased and the other women called him a mad man and he didn’t like it and pursued them with the stick with which he hit the deceased. The stick was his walking stick.”

Appellant denied breaking the doors of any house, but admitted that the door through which the deceased and the other women entered into the house was broken. He also retracted from the confession of his statement to the Police Exh. A, that he pushed a stick into the vagina of the deceased; or that he had ever made love advances to the deceased.

The evidence of his two witnesses was to the effect that after appellant had died and resurrected on two occasions, he became a preacher and palmist. He went about armed and assaulted anybody who called him a mad man. The findings of the trial Judge were that the accused/appellant beat the deceased several times with his walking stick, and she died in consequence. He also found that the confessional statement of the accused was corroborated by the evidence of the prosecution witnesses.

The learned trial Judge considered the defence of insanity and found that the accused having not discharged the onus, this was not on the evidence available to the accused. The defence of provocation was also considered and rejected on the ground that there was no evidence in support. The learned trial Judge found that accused was on the evidence motivated by revenge.

The accused was found guilty of the murder of Titi Ajuobi, convicted and sentenced to death. On appeal to the court below against conviction and sentence, only one ground of appeal was argued. The only ground related to the conviction in the absence of proof of the cause of death. In essence all that was contended was that there was insufficient evidence to support the conviction of the Appellant.

The Court below dismissed the appeal. The findings of fact of the learned trial judge were affirmed. The Court below relied rightly on Kato Dan Adamu v. Kano N. A. (1956) 1 F.S.C. 25; (1956) SCNLR 65; Bakori v The State (1965) N.M.L.R. 163; Bwashi v. The State (1972) 6 SC.93; Lori v. The State (1980) 8-11 S.C. 81, Eric Uyo v. A.G., Bendel State (1986) 1 NWLR, (Pt. 17) 418 for the proposition that “were the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death was instantaneous or nearly so.”

The rationale for this proposition which is founded on logic and commonsense is that since the act of the accused is the most proximate event to the death of the deceased, it could be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased. As long as the intention to kill or to do grievous bodily harm has been established, the intention for the offence of murder is complete. – See Queen v. Ntah (1961) 1 All N.L.R., 590; (1961) 2 SCNLR 250.

This Court has stated in Eric Uyo v. A.G. Bendel State (1986) I NWLR (Pt. 17) 418 at p.430, that “the important consideration for determining responsibility (for murder) is whether death of the deceased was caused by injuries …sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries”.

The Court below also considered and affirmed the finding of the trial Judge on insanity and provocation. The defences were rejected.

The conviction and sentence were affirmed and the appeal was dismissed.

Before this Court learned counsel to the Appellant had repeated virtually his arguments in the Court below. His main contention is that on the evidence before the learned trial Judge, namely the evidence of the accused that he only hit the deceased with the stick and nothing more, and on the arm, it could not be said that that was evidence sufficient to support a conviction. It was submitted relying on Ozo v. The State (1971) 1 All N.L.R.111; Omogodo v. State (1981) 5 S.C. 5 at 26 that it is not sufficient to give evidence of the death of the deceased. The prosecution must go further to show that the deceased met her death from the act of the accused/appellant It is only in such a circumstance that the prosecution could be said to have discharged the onus to prove the guilt of the accused.

Where all that was proved was that the act of the accused could have caused the death of the deceased, the standard of proof of the offence of murder has not been discharged – See Akirife v. State (1988) 3 NWLR. (Pt. 85) 729; Onyenankeya v. State (1964) All N.L.R.151.

It seems to me learned counsel to the Appellant has totally ignored the significance of the findings of facts of the learned trial Judge and the concurrence of the Court below in his submission. The evidence of the accused which was not believed by the trial Judge not being evidence in the case cannot be the basis for determining the guilt of the accused. In the instant case theP.W.2and P.W.3, were eye witnesses to the beating of the deceased by the Appellant. The trial Judge believed their testimony. The Court below saw no reason to hold the contrary.

Again, appellant did not deny beating the deceased. Learned counsel to the Appellant, Mr. Okolo, submitted to us that even though accused admitted beating the deceased, “neither the lethal nature of that stick nor the intensity with which the assault was inflicted, was supplied in evidence …” In his submission this … “would enable or support a determination of the serious or terminal nature of the assault or supply one of the requisite intention; in the appellant, to do grievous bodily harm”.

In other words, the contention of Mr. Okolo was that on the evidence before the court, it was not possible for the learned trial Judge to determine whether accused had the requisite intent for murder. In his reply, Mr. Ajuonuma. Learned counsel to the Respondent pointed out, and I agree with him, that there was unanimity among all the witnesses that the accused used a stick in beating the deceased. P.W.3 described it as a big stick. The Appellant/accused himself, described it both as his walking stick, and “a club”. Again there was evidence that the deceased was shouting whilst accused/Appellant was beating her, till she became unconscious. She was subsequently the same day, taken to the Ramat Hospital Umuahia She died within 24 hours of the incident.

In their circumstances of this case even if Appellant had no intention to kill the deceased, he did not care whether she died from the attack. He was clearly reckless as to the consequence of his act. But it cannot be said from the weapon used and its effect that he did not intend to cause the deceased grievous bodily harm. Both intentions are sufficient and within section 316(1) & (2) of the Criminal Code for conviction for murder. There was overwhelming evidence that the nature of the assault on the deceased was that he intended to cause grievous bodily harm. Death having resulted directly from such act of the accused/appellant and within 24 hours, the conclusion is inevitable that death resulted from the consequences of that act. – See S.316(2) Criminal Code.

It is accepted law that the trial Court may in the absence of medical evidence decide the cause of death on the evidence before him showing unequivocally the nexus between death of the deceased and the unlawful act of the accused – See Akpuenya v. State (1976) 11 S.C.269, Bakuri v. The State (1965) N.M.L.R.163.

Learned Counsel to the Appellants cannot be seriously contending on the evidence before the trial Judge that the prosecution did not prove that appellant did intend to do to the deceased grievous bodily harm. The evidence is overwhelming in support of the finding. Death having resulted, the offence of murder has been committed. – See Basoyin v. A-G Western Nigeria (1966) N.M.L.R. 287.

I have come to the conclusion from all I have said in this judgment that the appeal lacks merit and ought to be dismissed. The Judgment of the Court below affirming the judgment of the Umuahia High Court, which convicted appellant for murder and sentence him to death is accordingly hereby affirmed.

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SC.67/1990