Ochuko Tegwonor V. The State (2007)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A.
The accused person now the appellant in this appeal was arraigned on a one count charge of murder under S.319 of the Criminal Code Law Cap 48 Vol. II Laws of the defunct Bendel State of Nigeria 1976 applicable to Delta State before the Effurun Judicial Division of the Delta State High Court of Justice. The appellant pleaded not guilty to the charge.
The State as the prosecuting party in an attempt to sustain the charge called four witnesses while the accused person, in defence, testified in her own behalf without calling any witness.
It is pertinent to point out that none of the prosecuting witnesses gave an eye witness account of the incident which led to the injury on the head of the deceased on 21/5/2002 which eventually led to his death on 29/5/2002. The PW4 who is a medical officer gave a graphic account of the post mortem examination which he carried out on the corpse of the deceased.
Significantly, the PW4 stated that the cause of death of the deceased was “untreated neglected wound which resulted in tetanus infection”. He also opined that the primary cause of death is equally “linear neglected wound on the forehead while the secondary cause is tetanus”.
The accused person in her evidence on oath essentially denied hitting the deceased with a shovel in contradiction to her earlier extra judicial statement made to the police where she admitted hitting the deceased on the head with a shovel. The learned counsel for the accused person and the learned prosecution thereafter addressed the trial Court.
In a considered judgment, the learned trial Judge held, inter alia:
“In the circumstances, I believe the evidence of the prosecution and disbelieve the evidence of the accused. From the totality of the evidence before this Honourable Court, I am satisfied that the prosecution has proved its case against the accused beyond reasonable doubt. I hold that the accused intentionally murdered the deceased, Augustine Idemidaye, on 21/5/02 on a mere argument arising from channeling of water from the compound.”
The accused person was dissatisfied with the judgment and appealed to this Court on two grounds of appeal.
The accused person/appellant (hereinafter called the appellant) distilled only one issue from the two grounds of appeal for the determination of this appeal. The only issue reads:
“Whether the learned trial Judge improperly appraised and evaluated the evidence before him thereby convicting the appellant of the offence of murder.”
The prosecution/respondent (hereinafter referred to as the respondent) on its part also identified only one issue from the two grounds of appeal filed by the appellant. The said sole issue raised for the determination of the appeal reads:
“Whether the prosecution proved its case against the appellant beyond reasonable doubt.”
At the hearing of the appeal on 25/4/07, Sylvia Ogwemoh, Esq., the learned counsel for the appellant adopted and relied on the appellant’s brief of argument and urged the Court to allow the appeal and enter a verdict of discharge and acquittal for the appellant.
U.R. Monye Esq., the learned Principal State Counsel in Delta State Ministry of Justice who appeared for the respondent also adopted and relied on the respondent’s brief of argument, albeit deemed filed on 19/2/07.
The sole issue adumbrated by the appellant and the respondent is, in my opinion, similar in substance even though one is talking about improper appraisal and evaluation of evidence while the other is on the standard of proof beyond reasonable doubt. I am of the view that one subsumes the other. I shall therefore determine this appeal on the issue raised by the appellant.
On the sole issue for the determination of this appeal, the learned counsel for appellant reproduced the following from pages 78 lines 16-19 and 79 lines 1 to 8 of the record of appeal:
“78. Part of the evidence of PW4 reproduced above showed that the primary cause of death of the deceased is the injury inflicted on his head by the accused. The secondary cause of death is tetanus which set in because proper treatment was not administered.
- The evidence of PW4 shows that the injury was serious. The injury is on the head. It takes tetanus shorter time to get to the brain and cause death than getting to the brain from the lower part of the body. The accused intended the death or grievous bodily harm of the deceased. It is my opinion and I so hold that the accused caused the death of the deceased, intervening incident of tetanus notwithstanding.”
The learned counsel for the appellant submitted on the above findings that those findings of the lower Court were not based on the evidence before it. He instead referred the Court for purposes of clarity and understanding that the following is part of the evidence of the PW4 (the medical officer):
“My names are Dr. Eustace Akpomiemie Young. I live along Refinery Road, Ekpan. I am a medical officer attached to Ekpan General Hospital. I have M.D. – Medical Doctor. I do medical and surgical jobs in the hospital…………….. After the physical job in the mortuary I went to the male ward where I requested for the hospitalise sate (sic). From the note up till point of death I discovered that the patient died from tetanus. In my opinion Augustine Idemidaye died from the wound on his head which was neglected untreated as a result of tetanus got into it. Tetanus being a dangerous diseased (sic) at the terminal stage there is nothing any doctor can do. The primary cause of death is linear neglected wound on the head. Secondary cause is tetanus.”
Learned counsel equally highlighted that the evidence of the PW4 who elaborated that tetanus being a disease is caused by a bacterium which is found in the ground and that if any rusty metal stained with earth is used to cause any injury to any part of the body, tetanus can set in. He argued probably from medical parlance based on the circumstances of this case that once there is an injury on the body of a victim, the very first treatment to be administered after the dressing of the wound is tetanus injection. He submitted that this line of treatment was obviously neglected by the medical doctor who admitted the deceased in hospital on 21/5/2002 and remained on admission for a period of four days without the requisite proper and widely recognized treatment for the deceased’s type of injury. He argued, based on the evidence of PW4, a medical expert, that death of the deceased did not occur instantaneously when the injury was inflicted on the deceased. He submitted that in this’ circumstance it is obvious that the cause of death is the neglected untreated wound coupled with the fact that when the PW4 was asked by the prosecution what the primary cause, of the deceased’s death was; he said that
“the primary cause of death is linear neglected wound on the head. Secondary cause is tetanus.”
Learned counsel thereby argued that if the linear wound was “not neglected untreated” it would not have resulted in the death of the deceased. In this wise, he submitted that the lower trial Court improperly appraised the evidence before it in convicting the accused of the offence of murder.
The learned counsel observed that the trial Court in arriving at the finding that the accused is guilty of the offence of murder as charged also placed reliance on the provision of S.312 of the Criminal Code Law of the defunct Bendel State as applicable in Delta State without a consideration of the complementary provisions of Ss. 311 and 313 of the same Criminal Code Law (supra). He submitted that by virtue of S.313 (supra) any person who accelerates the death of another person is guilty of having killed that person. He sourced evidence for this submission by saying that the doctors at Muscow Clinic P.T.I. Road, Effurun and Eku Hospital to which the deceased was taken for treatment for the head injury could be said to have accelerated the death of the deceased by refusing or neglecting to apply the appropriate medical treatment. He argued that from available evidence that the deceased was not given tetanus injection as reasonably ought to have been the case. He submitted that that omission was not done in good faith and could not be reasonably proper in the circumstances of the instant case. He therefore further submitted that the subsequent death of the deceased about nine days after the injury was not as a result of the wound inflicted on him (the deceased) by the accused but from other intervening circumstances. He exemplified one of the intervening circumstances as the carelessness and negligence of the medical doctors in treating the wound properly and with utmost good faith as required by their medical oath. He relied on the cases of R v. SMITH (1952) 2 Q.B. 35 and AHMED v. THE STATE (2001) 18 NWLR (PT. 746) 622 at 644. In the former case, it was held that where it was established that the original wound only provided a setting in which another cause operated, it could thereby be said that the original wound was not the cause of death. In the latter case, it was held by the Supreme Court that the primary enquiry into the cause of death of a person is an enquiry into the biological cause of death. The question at that stage is: What caused the death and not who caused the death?
Learned counsel submitted that, as regards the cause of death, the medical evidence is direct evidence of the cause of death particularly when it is given by the doctor who carried out the autopsy or by a doctor who treated the deceased. Learned counsel further submitted that in homicide cases where the cause of death is obvious, medical evidence ceases to be of practical necessity. It is also trite that where the deceased died almost instantaneously from the voluntary act of the accused, medical evidence will not be necessary. Where death, however, occurred later, as in the instant case some nine days later, the learned counsel submitted that conclusive evidence as to the cause of death becomes a necessity and the Court will have no choice but to rely on such conclusive medical evidence in either convicting the accused or acquitting him. He contended that the proper order for the trial Court to have made in the instant case was one of discharge and acquittal based on the conclusiveness of the medical report before the trial. He relied on the cases of AIGUOREGHIAN V. THE STATE (2004) 3 NWLR (PT.860) 367 at 397 and 423 and AHMED V. THE STATE (supra). He particularly recommended the latter authority which he argued that it appears to be on all fours with the instant case. He finally urged the Court to hold that the appellant was not responsible for the death of the deceased and should therefore be discharged and acquitted of the offence of murder as charged.
In reply, E.O. Ohimor Esq. the learned legal officer in the Delta State Ministry of Justice submitted that the prosecution proved its case against the appellant beyond reasonable doubt. He went on to re-iterate the antecedents of the case briefly that on 21/5/2002 there was a quarrel between the deceased and one Augustine, a co-tenant, over the channeling of water from the bathroom. The appellant who was having her bath at the time the fight raged on later came out and picked up the shovel that was normally used to channel water and began to dig a gutter to enable water to flow from the bathroom she had used. The deceased accosted the appellant on her action and a fight ensued whereby the latter used the shovel to hit the former on the fore-head and he sustained an injury. The deceased was taken to the General Hospital Warri but was transferred to a private clinic because there was no bed therein. At the private clinic, the resident doctor referred the deceased to Eku Baptist Hospital where he later died on 29/5/2002.
Learned counsel for the respondent re-iterated the trite principle in criminal cases that the onus is on the prosecution to prove its case beyond reasonable doubt and elaborated it by saying that proof beyond reasonable doubt does not mean proof beyond all shadows of doubt. All that is required is for the Judge to be satisfied that the evidence before him has proved the necessary ingredients of the offence charged and cited in support the cases of ONAFOWOKAN V. THE STATE (1987) 3 NWLR (PT.61) 538 at 551 and MBANEGAN SHANDE V. THE STATE (2004) ALL FWLR (PT.223) 1958.
The learned counsel for the respondent submitted that in a charge for murder, the onus is on the prosecution to prove three ingredients to sustain a charge of murder which are:
(1) that the deceased has died,
(2) that the accused caused the death of the deceased
(3) that the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
He relied on the case of THE STATE V. JOHN OGBUBUNJO & ANOR. (2001) 1 SCNJ 86.
As regards the first ingredient (supra), the learned counsel for the respondent submitted that there is no doubt at all from the appellant’s brief and the items of evidence of the prosecution witnesses that the deceased, Augustine Idemidaye, died.
With regard to the second ingredient on whether the accused/appellant caused the death of the deceased, the learned counsel for the respondent reiterated part of the submissions of the learned counsel for the appellant where he stated that the subsequent death of the deceased about nine days after the injury was not as a result of the wound inflicted on the deceased by the appellant but from other intervening circumstances. The appellant did not deny inflicting any injury on the respondent, moreso when it is clearly stated in exhibit A, the confessional statement of the appellant. He submitted that what is in contention is, whether based on the medical report (exhibit. E) which stated the cause of death as neglected infected wound leading to tetanus as well as the testimony of the PW4 to the effect that “the primary cause of death is linear neglected wound on the head while the secondary cause is tetanus, the appellant can still be held liable. He particularly relied on Ss. 312, 313 and 314 of the Criminal Code as well as the cases of QUEEN V. IMADEBHOR EGUABOR (1962) NSCC VOL.2 page 348 and also EFFANGA V. THE STATE (1969) NSCC VOL. 6 page 317 and submitted that the trial Judge was right in convicting for the murder of the deceased. He urged on the Court that once an accused person makes a statement under caution admitting the committal of an offence with which he is charged or even creating the impression that he committed the said offence, the statement becomes confessional and relevant to the proceedings irrespective of any resilience from it by the accused person in a subsequent statement or evidence in Court as long as the statement in part is voluntary, direct, positive and unequivocal. Such a statement amounts to an admission of guilt and it can therefore ground a conviction. He called in aid the case of OSAKWE V. THE STATE (1994) 2 SCNJ 57 and S.27 of the Evidence Act.
On the third ingredient of murder (supra), the learned counsel for the respondent submitted that the intention to kill or do grievous bodily harm can be inferred from the instrument used to inflict the injury. He argued that such inference of the accused person’s intention to kill can be made from the part of the evidence of the PW4 (the medical doctor’s testimony) that “on examination, I found a linear regular cut running from the frontal to the occiput 13 centimetres long about 5cm deep between the right and left parietals”. He relied on the case of QUEEN V. ONORO (1961) NSCC VOL. 2 page 26. Learned counsel finally submitted that what caused the death of the deceased has been effectively established by the evidence of the PW4. He therefore urged the Court to hold that from the totality of the case for the prosecution, the ingredients for the offence of murder have been successfully proved beyond reasonable doubt and that the conviction and sentence of the appellant by the trial Court should be upheld.
I shall, at the risk of repetition, state that the appellant was found guilty by the trial Court of the offence of murder contrary to S.319 of the Criminal Code.
Where a person is charged with an offence of murder the sequence of enquiry is as follows:
(1) whether the deceased had died;
(2) whether the accused person caused the death of the deceased and; .
(3) whether the act of the accused person was intentional with the knowledge that death or grievous bodily harm is its probable consequence.
See DURU V. THE STATE (1993) 3 SCNJ 9 at 14; THE STATE V. JOHN OGBUBUNJO & ANOR. (supra); AHMED V. THE STATE (2001) 18 NWLR (PT.746) 622 at 641 and 641.
The foregoing three ingredients shall be satisfactorily established by the prosecution in order to ground a conviction for murder against the accused person.
It is common ground based on the record of appeal and submissions of the learned counsel for the appellant and the respondent that Augustine Idemidaye, the victim of the appellant’s attack died some nine days after the fatal attack with a shovel on him. It is therefore unnecessary to expend time on the fact of death in this case.
In logical sequence of the ingredients of the offence of murder already set out (supra), the next is on the cause of death.’ It is trite that in a charge of murder if the cause of death has not been proved it is futile and illogical to proceed to consider whether it was the accused who caused the death of the victim of attack. The primary inquiry into the cause of death of a person is an inquiry into the biological cause of death. The pertinent question at the stage of inquiry is: What caused the death and not who caused the death.
When what caused the death has been ascertained the issue of who caused the death becomes relevant or one of causal connection between the act of the accused person and the biological cause of death.
The sequence of events has been graphically set out by the four prosecution witnesses. Of these four prosecution witnesses, none of them is an eye witness. Their items of evidence relate to what happened to the deceased after he had sustained an injury on his forehead. The only person who would have given an eye witness account was one Augustine who shared the same first name with the deceased. From the record, it was he (Augustine) who initially fought with the deceased to the point when the appellant took over. His items of evidence would have been vital in the determination of whether or not the possible defences of self defence or provocation could avail the appellant. The respondent, for reasons not disclosed to the trial Court withheld that vital evidence.
The prevailing circumstances of this case do not admit of the invocation of the presumption enshrined in S.149 (d) of the Evidence Act because without the evidence of the absenting Augustine, though vital, the prosecution was able to establish one of the essential ingredients of murder in this case that is to say death of the deceased. See BELLO V. KASSIM (1969) NMLR 148 at 158; LATINWO V. AJAO (1973) 2 SC 99 at 129; ONWUJUBA V. OBIENU (1991) 4 NWLR (PT.183) 16 at 29.
On the all important issue of cause of death in a charge for the offence of murder, it is essential to note that in order to hold an accused person criminally responsible, the chain of causation must not be broken. Once, however, there is a break in the chain of causation that break in link must be resolved in favour of the accused person as it affects the actus reus of the offence. It can be similarly stated that where the injury which caused the death is not the proximate, legal or direct cause of the death of the deceased, the benefit of doubt must be given to the accused person. It is equally pertinent to state that where there is more than one possible cause of death, the benefit of doubt must be given t6 the accused person because the available evidence in such a situation hardly pins the accused person down to the death of the deceased. This is so because there is an intervening or supervening cause which is aptly described as novus actus interveniens and nova interveniens respectively. See UYO V. ATTORNEY-GENERAL, BENDEL STATE (1986) 1 NWLR (PT.17) 418; OGUNTOLU V. THE STATE (1996) 2 NWLR (PT.432) 503; IDOWU V. THE STATE (2000) 7 SC (PT.11) 50; (2000) 12 NWLR (PT.680) 48; AHMED V. THE STATE (2001) 18 NWLR (PT.746) 622; AIGUOREGHIAN V. THE STATE (2004) 3 NWLR (PT.860) 367 at 414. In the instant case, the wound inflicted on the forehead of the deceased person by the accused person did not cause the instantaneous death of the deceased person. The deceased instead died some nine days afterwards when he (the deceased person) had been taken to two or three hospitals for treatment of the injury inflicted on him by the accused person. Thus, there is prosecution evidence by the PW1 and the PW2 that the deceased was removed from Muscow Clinic P.T.I. Road, Effurun because they were not happy with the treatment given to the deceased who was thereafter taken to Eku Hospital when the condition of the deceased worsened and he died some nine days after the appellant attacked him. The pertinent question with regard to the cause of death of the deceased: Was it the initial injury he sustained on 21/5/02 or the intervention and/or medical attention given to him in Muscow Clinic and Eko Hospital between that date and 29/5/02 when he died. It is quite clear from the record of appeal that the deceased was injured on the head as a result of the attack of the appellant who dealt a shovel blow on him. It is also not in dispute that it was the appellant who caused the injury as reflected in her confessional statement (exhibit A). The law of confessional statement of an accused person is trite. It is that when the statement is direct, positive, unequivocal and it is made voluntarily, it is sufficient to ground the conviction of the accused person. In other words a confession, if voluntary, is deemed to be relevant as against the person who made it only.
In effect, confessions per se are admissible. See IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455; DURUGO V. THE STATE (1992) 7 NWLR (PT. 255) 525; OBASI V. THE STATE (1965) NMLR 119; ACHABUA V. THE STATE (1976) 12 SC 63. The appellant, however, in her defence retracted or resiled from making exhibit A. The settled law on retraction of an apparent confessional statement made by an accused person is that such a retraction goes to no issue so long as the statement has been proved to have been made voluntarily and it is direct, positive, unequivocal and it clearly amounts to an admission of guilt, it can still ground a confession. See OSAKWE V. THE STATE (1994) 2 SCNJ 57. It is equally trite that apart from the directness, positiveness, voluntariness of the statement in point the trial Court has a bounden duty to test the confession as to its truth. This test appeared to have been satisfied when in the course of trial the appellant did not raise any vitiating factor to cast doubt on the truth of what she narrated to the PW3 (the investigating police officer). See JAFIYAKOPA V. STATE (1971) NSCC VOL. 7 at page 166. The relevance of exhibit A in the instant case is only to the extent that the appellant admitted that she dealt a lethal shovel blow on the head of the deceased. This confession would have served as a direct evidence that that injury caused the death of the deceased if he had died on the spot consequent on being hit on the head by the appellant; that would been sufficient proof of cause of death. See IDIRU V. THE STATE (1968) NMLR 88; ALARAPE V. THE STATE (2001) 5 NWLR (PT. 705) 79; (2001) 5 SC 114. This was, however, not to be in the instant case where the deceased died several days, to be precise, nine days after he had been hit on the head.
The learned counsel for the respondent argued that since the deceased was brutally hit on the head by the appellant and there is a confession to that effect, the attendant injury was sufficient proof as the cause of death and that there was no need to look for intervening circumstances as the cause of death. He particularly relied on S.312 of the Criminal Code Bendel State as applicable in Delta State. The learned counsel for the appellant on his part urged the Court to look beyond that section by considering the complimentary provisions in Ss. 311 and 313 of the said law. The provisions of the three sections (above) will be reproduced for better appreciation and ease of reference. Ss. 311, 312 and 313 of the Criminal Code Law Cap 48 Volume II, Laws of Bendel State as applicable in Delta State (hereinafter referred to as the Criminal Code) read:
“311. A person who does an act or makes an omission which hastens the death of another person who when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.
- When a person causes a bodily injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person injured or that his death from injury might have been prevented by proper care or treatment.
- When a person does grievous bodily harm to another, and such other person has recourse to surgical or medical treatment and death results either from the injury or the treatment, he is deemed to have killed that other person, although the immediate cause of death was the surgical or medical treatment provided that the treatment was reasonably proper under the circumstances and was applied in good faith.” (Underlining mine for emphasis)
In view of the submissions of the learned counsel for the appellant and the respondent as to which of the foregoing provisions is or are appropriate in the instant case one calls in aid the interpretation of the words of any statute in order to evince the intention of the law makers from the words used. The basic principle of interpretation is the golden or literal rule whereby you give the words used in the statutes their ordinary and plain meanings. You do not import into a clause what is obviously not there. See AWOLOWO V. SHAGARI (1979) 6-9 SC 51 at 90-92; FASAKIN V. FASAKIN (1994) 4 MWLR (PT.340) 597 at 617. Halsbury’s Laws of England volume 36 page 395 at paragraph 594 on the provisions of a statute is also pertinent and it reads:
“For the purposes of construction: the con of words which are to be construed includes not only the particular phrase or section in which they occur but also the other parts of the statute. Then a statute should be construed as a whole so far as possible so as to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute.”
The main purport of the foregoing extracts is that in the interpretation of the provisions of a statute the meaning and/or application of that provision should not be localized. It should instead be global by sourcing from other sections of the statute in order to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other sections of the statute. In other words, a section of statute, its subsections and related sections must be read together in order to comprehend their purport. See ALAMIEYESEIGHA V. IGONIWARI & ORS. (2007) 7 NWLR (PT.1034) 524 at 618; EKPO V. CALABAR LOCAL GOVERNMENT (1993) 3 NWLR (PT. 281) 324. (1993) 3 NWLR (pt. 281) 324. I shall accordingly invoke the above stated principles and decline the contention of the learned counsel for the respondent urging that in order to know the cause of death in the instant case, the Court should restrict itself to S. 312 of the Criminal Code. The purport of that section is that the person who causes bodily injury to another person and death ensued is deemed to have caused the death of the person injured. It is immaterial that that injury might have been avoided by proper precaution on the part of the person injured or that death from that injury might have been prevented by proper care or treatment.
Section 313 of the Criminal Code appears to have a more embracing coverage to accommodate the circumstances of the instant case. It is to the effect that when the injured person has recoursed to surgical or medical treatment and death results either from the injury or medical treatment, the person who does grievous bodily harm to the deceased is deemed to have killed that other person, although the immediate cause of death was the ‘surgical or medical treatment provided that the treatment provided that the treatment was reasonably proper under the circumstances and was in good faith. In the prevailing circumstances of this case where the deceased was moved from one hospital to another without evidence of what medical attention was given to the deceased because the medical evidence of what took place in those medical institutions was not available, it can aptly be presumed that the respondent did not produce any such evidence because it was unfavourable to it as such evidence might have disclosed whether or not those medical doctors applied the appropriate medical treatment to the deceased. See section 149(d) of the Evidence Act 1990 and ONWUJABA v. OBIENU (supra) at page 25. Aside this lapse by the respondent there is, however, the evidence of the PW4 (the medical officer) who did autopsy on the corpse of the deceased which, in my considered view, appears to be revealing. The following is part of the essential evidence of the PW4:
“…….on examination I found a linear regular cut. running from the frontal to the occiput 13 centimetres long about 5 centimetres deep between the right and left parietal. I was told he was hospitalized in Eku before he died. It means he died in the hospital in Eku. After the physical job in the mortuary, I went to the male surgical ward where I requested for the hospitalize sate (sic). From the note up till point of death I discovered that the patient died from tetanus. In my opinion Augustine Dermudaye died from the wound on his head which was neglected untreated ….. as a result tetanus got into it. Tetanus being a dangerous diseased (sic) at terminal stage there is nothing any doctor could do. The primary cause of death is linear neglected wound on the head. Secondary cause is tetanus. Tetanum is a bacterium that is found in the ground. I am made to understand the wound was caused by a shovel. Rusted metal stained with earth can cause tetanus. A sharp hard object caused the wound I found on the deceased. If the shovel carrying earth is used tetanus can attack. The incubation time is two weeks if the point of injury is close to the leg. But where the wound is close to the brain the period of incubation is short. I issued a post mortem report to the police.”
The foregoing viva voce account what the PW4 did in respect of the deceased person’s corpse as well as exhibit E (the autopsy report) are comprehensive, clear and instructive on particularly the cause of the deceased person’s death. It is germane to say that the medical evidence of the PW4 is very vital in the instant case where the death of the deceased did not occur instantaneously. Cause of death is always a fact in issue in a case of murder and that fact in issue may be proved by direct evidence or by circumstantial evidence. Contrasted with circumstantial evidence, direct evidence is evidence of fact in issue. When it is testimonial evidence it is evidence of the witness who claims personal knowledge of the fact he testifies about. Circumstantial evidence, however, is evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred. As regards the cause of death medical evidence is direct evidence of the cause of death, a fact in issue, when given by the doctor who carried out the autopsy or a doctor who treated the deceased. This example is not exhaustive.
It is settled law that as much as medical evidence is desirable to prove the cause of death in murder cases. It is not a sine qua non. It has been laid down in a plethora of cases that cause of death can be established by sufficient evidence other than medical evidence showing beyond reasonable doubt that death resulted from the particular act of the accused person. See AZU V. THE STATE (1993) 6 NWLR (PT. 299) 303 at 313; AKPIENYA V. THE STATE (1976) 11 SC 269 at 278. Where however there is abundant evidence of the manner of death medical evidence is dispensed with. See LORI V; THE STATE (1980) 8-11 SC 81 at 97. Where, as in the instant case, there is another cause of death other than the available medical evidence, the two causes of death will be clearly analysed to know which of them is a probable cause of death. In other words, the cause of death should be established with certainty because the act which caused the death is in most cases a certain act. See ADEKUNLE V. THE STATE (1989) 12 SC 203; OFORLETE V. THE STATE (2000) 12 NWLR (PT. 681) 415; (2000) 7 SC (PT. 1) 80.
In the instant case, there appeared to be two causes of death. Thus, there is a cause of death apparently testified to by the 1st and 2nd witnesses for the respondent on the fact of an attack on the deceased by the appellant which led to a grievous bodily injury and subsequent death and there is another cause of death given by an expert, the P.W.4. This scenario, no doubt, created a break in the chain of causation. It is settled that any such break in causation, otherwise known as novus actus interveniens, should be resolved in favour of the accused person, in this case the appellant, as it affects the actus reus of the offence. It is not in doubt that the purport of the medical evidence is pungently to the effect that medical treatment given to the deceased after sustaining injury on his forehead was carelessly handled by those undisclosed doctors who curiously enough was not called to give evidence. The P.W.4 has, however, supplied much of the needed evidence by saying that he examined the medical records in the medical centers where the deceased was attended to after he sustained the injury in point and found that the medical treatment in those medical was utterly short of elementary treatment that should have been resorted to in treating a fresh wound particularly when a soiled metal was used to cause it. That was negligence on the part of the doctors who attended to the deceased. The effect was that the deceased developed tetanus. The P.W.4, albeit the respondent’s witness, emphatically and without any contradiction’ opined inter alia that:
“In my opinion Augustine Demudaye died from the wound: on his head which was neglected untreated as a result of tetanus which got into it. Tetanus being a dangerous diseased (sic) at terminal stage there is “nothing any doctor could do. The primary cause of death is linear neglected wound on the head. Secondary cause is tetanus .” (underlining mine for emphasis)
It is apparent from the evidence of the P.W.4 that his positive evidence is that there was negligent medical treatment in the intervening period from 21/5/02 and 29/5/2002 when the deceased died. The medical treatment the deceased got in that intervening period could not be said to be proper at all because the approach of the medical doctor and/or medical personnel in the hospitals where the deceased was admitted obviously fell short of relevant treatment. This is inferred from the evidence of the P.W.4 that once there is an injury on the body of a victim, the first treatment to be administered after dressing of the wound is tetanus injection. This line of treatment was obviously not recoursed to by the medical doctor who admitted the deceased in hospital particularly on 21/5/2002. In view of the proviso in S. 313 of the Criminal Code I shall prefer it to S. 312 of the Criminal Code and hold that the cause of death of the deceased was subsequent to the injury inflicted by the appellant. It is instead the intervening act or acts of the recourse to subsequent medical treatment. This is a clear case of supervening cause of death and it has rendered the apparent initial cause irrelevant in the determination of the actual cause of death. In effect, what caused the death of the deceased is not proximate to the injury inflicted on the deceased by the appellant. The cause of death in the instant case is instead remote as a result of the subsequent intervening acts of medical attention. It is settled that when what caused death has been ascertained “as in the instant case, who caused the death becomes one of causal connection between the act of the accused person and the biological cause of death. See AHMED V. THE STATE (supra) at page 642. Since there is a broken link in the chain of causation in the instant case that broken link must be resolved, on settled authorities, in favour of the appellant as it affects the actus reus of the offence.
In view of the certain conclusion based on available record that the actus reus of the appellant was not what caused the death of the deceased, it becomes otiose or academic considering the third ingredient of murder which is the mens rea of the appellant.
In the prevailing circumstances of this case, I am of strong opinion that the learned trial Judge, with due regard, failed to properly appraise the available evidence before convicting the appellant as charged. The law on evaluation or appraisal of evidence is trite that it is within the purview and competence of the trial Judge to first evaluate evidence of witnesses. He does not share this jurisdiction with the appellate Court. When the evaluation of the trial Judge is borne out of the evidence in Court, the appellate Court certainly cannot interfere even if he comes to the conclusion that he should have evaluated the evidence differently in the “absence of a perverse appraisal. However, where the evaluation of the evidence by the trial Court is perverse or improperly evaluated in the sense that it is not properly borne out from the evidence before him, an appellate Court is competent to re-evaluate the evidence on the record before him, and come to the proper decision. See IWUOHA V. NIPOST LTD. & ANOR. (2003) 8 NWLR (PT. 822) 308 at 343, 344 and 346; ABISI V. EKWEALOR (1993) 6 NWLR (PT. 302) 643; U.B.N. PLC V BORINI PRONO CO. LTD. (1998) 4 NWLR (PT. 547) 640. In the instant case, I am supported in my opinion that the learned trial Judge did not properly evaluate particularly the evidence of the P.WA on the cause of death which is directly in issue. I thereby have a bounden duty to interfere with the decision of the trial Court. I so do. I accordingly resolve the only issue in this appeal in favour of the appellant.
In the final analysis, I find merit in the appeal and it is allowed. The conviction and sentence of the trial Court are set aside. I quash the conviction and sentence passed on the appellant.
I instead enter a judgment of discharge and acquittal for the appellant.
Other Citations: (2007)LCN/2447(CA)
