Obasanjo Egharevba V The State (2016)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
Appellant and one other person were tried at the High Court of Justice of Edo State of Nigeria, Benin Judicial Division, in two count information for conspiracy to murder punishable under Section 324, and murder punishable under Section 319, of the Criminal Code Cap. 48, Vol II Laws of Bendel State of Nigeria, 1976 now applicable to Edo State of Nigeria. The appellant and his co-accused were serving terms of imprisonment at the Oko Maximum Prison, Benin City, Edo State.
The prosecution’s case is that the appellant, his co-accused and two other inmates of the prison went to work in the prison’s garden. Each of them had a hoe. At his request, the appellant was taken to a source of water close by to drink water. He was led by the deceased Warden. Appellant hit the deceased in the head with his hoe and the deceased fell down screaming. The prisoners, one of whom was to testify at the trial as PW3, ran to the scene and helped the wounded Warden to the prison’s compound from where he, the deceased, was taken to the University of Benin Teaching Hospital where he died about three weeks later.
The incident
took place on 19th May 2001. Meanwhile appellant and his co-accused had escaped but were apprehended the night of the same date by members of a vigilante group. They were handed over to the Police who charged them to Court.
From the point of view of the appellant one Omoruyi asked him to help clear the grass in her garden. He went with Omoruyi and three inmates to the farm. He was the leader of the team and went round to inspect the work of the other inmates. At a point he left for a place called Ogbemudia Pond. At the pond he heard some noises and saw people running helter skelter. He had at that point escaped but was caught by some vigilante group who handed him over to the police. He denied the charge and stated that his co-accused was not in the team he took to work for Omoruyi.
At the conclusion of the trial, the learned trial Judge first dealt with the second accused person. His Lordship held:
“It is my view that the prosecution has failed abysmally to prove the charges or offences as laid against the 2nd Accused person beyond reasonable doubt as required by Law. Consequently, the 2nd accused person is hereby and accordingly discharged and acquitted on the
two count charge of the information.”
In the case of the appellant, the learned trial Judge held:
In the result, arising from all the analysis, I hold that the prosecution has proved the guilt of the 1st accused person beyond reasonable doubt as required by law. In the circumstances, I find the 1st accused person guilty of the murder of Lucky Ononike (m) and I hereby convict him accordingly.”
Accordingly the appellant was sentenced to death by hanging.
Dissatisfied with the judgment, and sentence of death passed on him, the appellant appealed to the Court of Appeal, Benin Division. That Court on 23rd April 2012, dismissed the appeal and affirmed the judgment of the trial Court.
Appellant further appealed to this Court on two grounds from which he distilled the two issues reproduced below:
“1. Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.
- Whether the learned Justices of the Court of Appeal were right in upholding the admission of the purported confessional statement of the appellant (Exhibit A) by the lower Court and affirming the judgment
and conviction of the Appellant based on the said purported confessional statement.”
Learned Counsel for the Respondent practically adopted the two issues framed by the appellant except that he reversed the numbering.
Arguing issue 1 in his brief of argument learned Counsel for the appellant referred to the evidence of the PW2 who stated, inter alia, that “the injury on the head had healed” and argued that the submission of Counsel to that effect cannot be said to be half-truth. He said that the evidence of PW2, PW3 and evidence relating to the alleged murder weapon (Exhibit C) was not properly evaluated and that the Court erred in its conclusion that the case against the appellant was proved beyond reasonable doubt.
He relied on Morka v. The State (1998) 2 NWLR (Pt.537) page 294 at 301; S.135 (1) of the Evidence Act, 2011. Relying on Cyrracus Ogidi & Ors v. The State 1 SCNJ 67 at 85-86 in his contention that in criminal cases, the onus of proof is static and never shifts. He submitted that in a charge of murder, the prosecution must prove:
(1) Death of the deceased.
(2) That it was the act of the accused that caused the death of the deceased, and
(3) That the
act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
He relied on Okeke v. The State (1999) 2 NWLR (Pt.590) p.596, Owah v. The State (1985) 3 NWLR (Pt.12) 236. He maintained that the prosecution failed to prove all the essential ingredients and that “such failure must be resolved in favour of the accused person”. He referred to the findings of the PW2 relating to the cause of death and submitted that the evidence of PW2 did not fix the appellant at the scene of crime. He argued that the evidence of PW1 who said that the murder weapon he recovered is a wooden hoe differed from the evidence of PW3 who said the appellant hit the deceased with an iron hoe and urged the Court to resolve the doubt arising from the contradiction in the evidence of the PW1 and PW3 in favour of the appellant.
Learned Counsel said that PW3 was the son of an unnamed warden living in the prison quarters and did not witness the incident in respect of which he gave eye witness account, addingthat the Court ought not to convict on the evidence of a witness whose identity is in doubt. Learned Counsel repeated his
argument on various points and after highlighting what he described as contradiction in the evidence led by the prosecution he urged the Court to hold that the case against the appellant was not proved beyond reasonable doubt as required by law. He urged the Court to resolve the issue in favour of the appellant.
In issue 2, learned Counsel impugned the finding of the Court below that the statement (Exhibit A) was tendered and received in evidence without objection, adding that the record will show that the statement was challenged/denied when it was introduced by the PW1. He said that the appellant admitted making a statement but said he could not write and he thumb printed. He argued that what the appellant thumb-printed could not be Exhibit A which bore a signature, and not thumb-impression.
At paragraph 5.05 of his brief, learned Counsel said: “The learned Justice of the Court of Appeal … held that she agreed with learned Counsel for the Respondent…”I will deal with the personal pronoun at the end of the judgment.
He argued that neither the PW2 nor the PW3 was present when Exhibit A was made. He said that the Court below erred by upholding the
admissibility of Exhibit A. He urged the Court to allow the appeal and set aside the conviction of, and the sentence of death passed on, the appellant.
Dealing with issue 1 in the respondent’s brief (which is issue 2 in the appellant’s brief) learned Counsel for the respondent said that the Court below was right to have held that the statement Exhibit A was rightly admitted by the trial Court. He referred to the claim of the appellant that “… The signature on Exhibit A is not my signature. I did not make Exhibit A” and argued that the retraction of the statement is belated. He relied on Effiong v. State (1998) 59 LRCN 3961 at 3975 and Gbadamosi v. State (1992) 9 NWLR (Pt.266) 465 at 480 in his contention that the retraction should have been made at the time the document was sought to be admitted.
On the authority of Nsofor v. State (2004) 1 MJSC 1.28 he submitted that the timely denial of making Exhibit A may lend weight to the denial but is not a ground for rejecting the statement. He relied on Rex v. Sykes (1913) 8 CAR 233; Kanu v. King (1952) (1913) 14 WACA 30. He cited the case of Nwanchukwu v. State (2005) 4 LRCNCC 53 at 75 and said that the statement was
admitted because it was free, voluntary, true, positive and probable. He urged the Court to hold that all conditions for admission of confessional statement were met before the trial Court admitted Exhibit A. He urged the Court to resolve issue 1 in his brief against the appellant.
In issue 2 (issue 1 in appellant’s brief) learned Counsel for the respondent submitted that in the circumstances of this case the Court below was right to have affirmed the decision of the trial Court, adding that the prosecution is not expected to prove the guilt of an accused with absolute certainty. He relied on Re: Onafowokan v. State (1987) SCNJ 328. With reliance on Nkwuda Edumme v. State (1996) 3 NWLR (Pt.438) 530 he said that the prosecution discharged the burden of proof beyond reasonable doubt having proved (a) that the deceased died; (b) that the act of the accused caused the death of the deceased, and (c) that the accused intended to cause the death of the deceased or cause him grievous bodily harm.
He referred to the evidence of the three prosecution witnesses for proof that the case against the appellant was proved as required by law. He referred to the record and said
that the trial Court duly considered the defence of provocation, self-defence and accident and held that none of the above availed the appellant.
Learned Counsel submitted that the guilt of an accused person can be established in any of the following ways:
(a) his confessional statement; or
(b) circumstantial evidence, or
(c) evidence of eye-witness to the crime.
He relied on Emeka v. State (2001) 14 NWLR (Pt.734) p.666 and Igabele v. The State (2006) 6 NWLR (Pt.915) p.100 and argued that the prosecution can rely on any of the three ways to prove the case against the accused. He however failed to disclose whether he relied on any or all of the ways of proving the guilt he listed. He said that the Court below considered what the appellant highlighted as contradictions and concluded that the same were “immaterial and of no moment to warrant overturning the verdict of guilt passed on the appellant by the lower Court.”
He contended that the findings of fact and conclusion reached by the trial Court were rightly affirmed by the Court below and this Court has not been given any occasion to disturb the concurrent findings of the two Courts below. He invoked this Court’s
decision in Oguonwee v. State (1998) 4 SC 1104 at 124. He urged the Court to resolve issue 2 against the appellant, summarised his argument and urged the Court to dismiss the appeal for want of merit and affirm the decision of the two lower Courts.
I will determine the appeal on the two issues raised by the appellant which were substantially adopted, but re-numbered, by the respondent. The same issues were raised and canvassed to no avail in the Court below.
Ideally, in an appeal, issues are not formulated to coincide with the number of grounds of appeal. See Nwudenyi & Ors v. Aleke (1996) 4 NWLR (Pt.449) 349. It is better to raise an issue from a combination of grounds of appeal. The principle which governs the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be formulated into a single issue. See Labiyi v. Anretiola (1992) 10 SCNJ 1 at P.2.
The two issues raised from the two grounds of appeal can conveniently be argued as one. Be that as it may I will resolve the issues as raised and canvassed by learned Counsel for the appellant.
Issue 1 queries the decision of the Court below that the prosecution proved
its case beyond reasonable doubt. Now, what is proof beyond reasonable doubt The answer is provided in the case of K. Gopal Redding v. State of AP AIR 1979 SC 387 wherein the Indian Supreme Court held, inter alia:
“A reasonable doubt does not mean some light, airy, insubstantial doubt that may flip through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons.”
Before the Court below learned Counsel for the appellant contended that PW2, the Medical Doctor who performed the post mortem on the deceased said that the external wound sustained by the deceased had completely healed as at the time the deceased died. Their Lordships of the Court below had characterised the said submission as “half-truth”.
With due respect to learned Counsel the portion of the evidence of the PW2 he relied on in his submission is of less importance than the portion he left out in the determination of the guilt vel non of the appellant. What was left unsaid of the PW2’s evidence is louder than what was said. The Pw2 said inter alia:
“… There was
freshly healed wound on the right side of the head, an area I called the right temporal scalp. When I opened the body, my important findings were on the head collection of attered blood in the right temporal scalp area of the head. There was fracture of the right temporal scalp bone. There was also bleeding into a compartment that surrounds the brain (subdural compartment). This bleeding compressed the brain which led to the death of the deceased… I attributed the death of the deceased to head injury that fractured the skull which led to intracranial bleeding… The injury on the head had healed, but the problem was inside the head. The injury would have been caused by a blunt object. I do not know if the injury in this case was self-inflicted.”
Under cross-examination by the two learned Counsel for the two accused persons, the PW2 re-emphasised the evidence he had given in examination-in-chief. From the evidence of the PW2, it was the internal injury, not the external injury which he said had healed, that caused the death of the deceased, In the circumstances, I agree with the Court below that learned Counsel for the appellant represented only the half truth
when he relied only on the healed external injury and feigned ignorance of the internal injury which was the direct result of the external injury.
Learned Counsel complained that the PW2 gave evidence of fractured skull which led to intracranial bleeding but did not also fix the appellant to the scene of the crime. May be learned Counsel did not understand why the PW2 was called.
In murder cases, medical evidence is required to establish the cause of death and manner of death. The cause of death is medical question while the manner of death determines whether or not the injury which is the cause of death was or could have been self-inflicted. In my view, the PW2 properly determined the cause of death as the resultant effect of the head injury suffered by the deceased even though the wound itself had healed at the time he performed the post mortem on the body of the deceased.
The PW2 shied away from the second issue he was to determine – the manner of death. He said: “I do not know if the injury in this case was self-inflicted.” He did not have to know whether the injury he described as from which the deceased died was, or was not, self-inflicted. He was required to
give an opinion based on his training and experience as a pathologist whether the injury he described could have been self-inflicted or not.
It is not his duty, however, to fix the appellant at the time and scene of the crime, He did not give eye-witness account of the incident. Those who commit violent crimes do not invite medical doctors to witness their misdeeds so that he the doctor can fix them at the scene of their crime. Learned Counsel stated three elements the prosecution must prove to secure conviction in a murder charge:
(a) Death of the deceased; it is not in doubt that the body upon which the PW2 performed post mortem examination was that of the deceased, Lucky Ominike. This is clear from the totality of the evidence and in the circumstance a conviction cannot be voided because the person who identified the body to the doctor was not called.
It has been held severally that where the totality of the evidence of the prosecution shows consistently that the body on which a doctor performed a post mortem examination was that of the deceased, a separate witness on the issue of the deceased’s identity, though desirable, is not a necessity, see Enemoh v.
State (1990) 4 NWLR (Pt.145) 459; Princewill v. State (1994) 6 NLR (Pt.353) 703 at 713 G-H.
(b) That it was the act or omission of the accused that caused the death of the deceased. The PW3 was the prosecution’s star witness. He was serving a term of imprisonment at the said prison facility with the appellant and his co accused. The three of them were taken to work in the garden by the deceased warden. He was at the scene and heard the deceased screaming.
He swore that “I say the 1st accused used the iron hoe he was working with to hit the deceased.” In an attempt to impeach the credit of the PW3 the appellant said he knew “PW3 as a son to a warder… don’t know the father’s name.” But the PW3 had denied the allegation. He stated under cross-examination:
“I was born in Otuo… it is not true that I am not Friday Jatto. It is not true that I was brought in to stand for Friday Jatto…”
Appellant put identity of the PW3 in issue. If the PW3 was not who he claimed to be, then the appellant who knew that fact had the burden to prove his assertion by producing the real Friday Jatto or by any other means. It is a matter peculiarly within his own knowledge. See Section
140 of the Evidence Act, 2011.
He could have called Mrs Omoniyi he claimed he went to work for with two elderly men and two boys. He could have called any of the two elderly men or two boys to give evidence that he took them to work for Mrs. Omoniyi. The evidence that could have established that he went to work for Omoniyi with two elderly men and two boys was available but the appellant deliberately withheld it. This is a presumption that the evidence would have been fatal to his case if he had produced it. See Section 167 (d) Evidence Act 2011. See also Framo Nig Ltd v. Shaibu Daodu (1993) 3 NWLR (Pt.281) 372.
Every decision of a Court is a finding of fact to which the appropriate law is applied. In this case, the trial Court found the facts and applied the law and convicted the appellant. The Court below reviewed the case and found no reason to disturb the decision of the trial Court. Perhaps appellant’s Counsel did not appreciate the fact that he was dealing with a concurrent findings of the two Courts below.
In absence of a finding that the current finding of facts is either perverse or bedevilled with error in substantive or procedural law which if not corrected
will lead to a miscarriage of justice, this Court will not interfere even if the appellant had prayed the Court to do so. See Lokoyi & Anor v. Olojo (1983) 8 SC 61 at 68; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 23.
I accept the submission of the respondent that the case against the appellant was proved beyond reasonable doubt; bearing in mind that proof beyond reasonable doubt is not proof to mathematical certainty. I resolve issue one against the appellant.
Issue 2 is on admissibility of Exhibit 2, the statement credited to the appellant. When the learned prosecuting Counsel sought to tender the statement learned Counsel for the appellant said:
“The 1st accused says he did not make the statement sought to be tendered in evidence. Voluntary is not an issue.”
Learned Counsel for the appellant was right. The voluntariness of Exhibit A is not an issue in the appeal since the appellant denied having made it. The trial Court did not have to engage in a trial within trial. See Emeka v. State (2001) FWLR (Pt.66) 632 ratio 5. The trial Court was right to have admitted Exhibit A in evidence even though the appellant pleaded non est factum. See Queen v. Nwango Igine
(1960) 5 JSC 55.
At the end of the trial the trial Court considered Exhibit A in the light of the prevailing circumstances and came to the conclusion:
“In the instant case, from the facts of the admission of the 1st accused person in Exhibit ‘A’ and the surrounding circumstances of the whole case… I am satisfied that the 1st accused person made Exhibit A…”
This is a finding of fact made by the trial Court and endorsed by the Court below. Appellant did not even attempt to prove perversity in the finding. I see no reason to disturb the finding that the appellant made the confessional statement, Exhibit A, and the said exhibit was rightly admitted in evidence by the trial Court. The Court below rightly upheld the admission of Exhibit A. I resolve the issue against the appellant.
Having resolved the two issues in this appeal against the appellant, I hold that the appeal is devoid of merit and accordingly it is hereby dismissed. I affirm the judgment of the Court below.
Appeal dismissed.
I noted earlier in the judgment that learned Counsel for the appellant referred to the learned Justice of the Court below who wrote the leading judgment in the third person pronoun.
This is unacceptable. It violates the ethics of the noble profession. It is contemptuous.
On no account should a judicial officer be addressed or referred by pronouns. To deter further occurrence of this lapse and those who may imagine they can look down on/or talk down on the bench in this country, I hereby order learned Counsel for the appellant, Emmanuel O. Achukwu, Esq to tender an unreserved apology, within 30 days from today, to the Honourable Justices who heard this appeal in the Court below through the Hon. President of the Court of Appeal and copy the Chief Registrar of this Court.
SC.234/2012
