Patrick Oforlete V The State-2000
LAWGLOBAL HUB Lead Judgment Report
KALGO, J.S.C
The appellant, Patrick Oforlete, was charged with the offence of murder contrary to section 319( 1) of the Criminal Code (cap. 30 of Laws of former Eastern Nigeria applicable to Imo State). The case of the prosecution was that on the 7th day of December, 1988, at Duruaku Ebeke lsu-Njaba in the Orlu Judicial Division of Imo State, the appellant caused the death of one Agim Ohayagba by hitting him KALGO, J.S.C. (Delivering the Leading Judgment) on the head with a kitchen stool.
At the trial, which commenced at the Orlu High Court before Onunuju J., the appellant pleaded not guilty to the charge after it was read and explained to him. Thereafter both the prosecution and the defence called witnesses in support of their respective cases and later addressed the trial court before the case was adjourned for judgment.
On the 29th of January, 1993, the learned trial Judge, Onunuju J. delivered his judgment in which he found the appellant not guilty of murder but guilty of manslaughter and sentenced him to a term of five years imprisonment. The appellant was dissatisfied with this and he appealed to the Court of Appeal against conviction and sentence. The Court of Appeal heard the appeal, dismissed it as being without merit and affirmed the decision of the trial court.
The appellant was still not satisfied and he appealed to this court against conviction and sentence on four grounds.
In this court, briefs of argument were filed and exchanged by learned counsel on behalf of the parties. In the appellant’s brief four issues were formulated for the determination of this court in the appeal. They are:-
“(i) Whether trial of the appellant which led to his conviction and sentence was valid in law.
(ii) Whether it is correct as found by the two courts below, that the evidence of P.W.1 was not challenged at all.
(iii) Whether the appellant was rightly convicted and sentenced on the medical evidence.
(iv) Whether, the appellant’s defence was adequately considered”.
The respondent adopted all the issues raised by the appellant in his brief. On issue (i) the learned counsel for the appellant in his brief raised the question of regularity or otherwise of the plea of the appellant taken after the charge was amended. He submitted that there was non-compliance with the mandatory provision of section 215 of the Criminal Procedure Law of Imo State and so the whole trial was a nullity. This is no doubt a fresh point which was neither contested in the trial court nor taken up on appeal in the Court of Appeal. It is common ground that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court. See Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR (Pt.107) 68 at 100. And in this court no such fresh issue or point shall be entertained without the leave of the court having been had and obtained. See Udza Uor v. Paul Loko (1988) 2 NWLR (Pt.77) 430, and Order 6 rule 5(1) of the Rules of the Supreme Court 1985 as amended.
The attitude of this court on raising fresh points on appeal has been clearly expressed in the case of Akpene v. Barclays Bank of Nigeria (1977) 1 SC 47; Abinabina v. Enyimadu (1953) 12WACA 171; Djukpan v. Orovuyovbe (1967) 1 All NLR 134at 137-138; Oniah v. Onyia (1989) 1NWLR (Pt.99) 514; Makanjuola v. Balogun (1989) 3 NWLR (Pt.l08) 192.
The appellant did not obtain any leave to raise this issue in this court and no such leave was granted to him to do so. This issue cannot therefore be considered in this appeal. It is accordingly disregarded.
Issue (ii) concerns the evidence of P.W.1, who was the wife of the deceased and who was the only eye witness to the incident. In examination-in-chief at the trial, her evidence which was very short, reads:-
“My name is Abigial Agim. I live at Duruku Isu-Njaba. I am a farmer. I am also a widow. I was returning home and home (sic) and accused his senior brother by name Sylvester Oforlete who was abusing me and later slapped me in the presence of my late husband.
Then there was a fight between my husband and Sylvester Oforlete and during the fight the accused came there, picked a kitchen bench which he hit on the head of my late husband. There was swollen (sic) and after three months my husband was taken to Umuna General Hospital where he was on admission for about two weeks.
Later the doctor advised us to take the deceased to psychiatric Hospital Aba where he died on 7/12/88. There was no previous quarrel”. (Italics mine)
In cross-examination she said:-
“The accused did not come to the scene of fight with anything. No orange tree was removed by anybody. My deceased husband had no transaction with a juju priest at Okija in Anambra State. I know Atanatius Azubuike. My husband accompanied him to Okija to take oath in respect of a piece of land in dispute. My husband had no boil on the head. The juju priest did not come to my husband to perform cleansing for the swearing. The deceased was buried by his relations”.
There was no re-examination of P.W.1. The learned trial Judge in his judgment, evaluated the evidence of all the witnesses who testified before him and on the evidence of P.W.1, he observed thus:-
” … after this evidence of P.W.1 no questions were put to her on the allegations of facts she made against the accused. She was not shaken in cross-examination: There is no suggestion to her that all she said the accused did were not true. Questions put to her under cross-examination had nothing to do with the alleged fight”.
From the evidence of P.W.1 set out above, it is clear that the serious allegation of facts made by P.W.1 against the appellant was that during the fight which ensued on that day, the accused picked a kitchen bench or stool and hit the deceased with it on the head. It is also correct, as observed by the learned trial Judge that during cross-examination P.W.1 was not asked anything suggesting that what she said, was untrue or false. It is true that she said the appellant did not come to the scene of the fight with anything, but she said clearly in her evidence that the appellant picked up the kitchen bench with which he hit the deceased, at the scene.
The rest of the cross-examination related to juju priest and the swearing in or oath in respect of some land in dispute. I therefore agree with the Court of Appeal when it held in its judgment per Ogebe, J.C.A. that:-
“The interesting aspect of this case is that the appellant’s counsel in the court below did not challenge the evidence of P.W.1 under cross-examination as it related to what the appellant did to the husband”.
I do not however agree with the submission of the learned counsel for the appellant in his brief that the evidence of P.W.2 constituted a proper challenge of the evidence of P.W.1 in the circumstances of this case. I am therefore of the view that the appellant, during the fight, hit the deceased with a kitchen bench or stool on the head and I so find. I agree with the findings of the trial court and the Court of Appeal on this and answer issue (ii) in the affirmative.
I shall deal with issue (iv) next. It is trite law that in a criminal trial, any defence raised by an accused person must be considered however slight. See Nwuzoke v. State (1988) 1 NWLR (Pt.72) 529; Onuoha v. State (1988) 3 NWLR (Pt.83) 460; Adebayo v. Republic (1967) NMLR 391. It is also settled law that any defence to which an accused person is on the evidence entitled to, should be considered however stupid or unreasonable. See Oguntolu v. State (1996) 2 NWLR (Pt.432) 503. In this case the only defence of the appellant was a mere denial. This is clear in his own evidence, his caution statement Exhibit B1A and the evidence of his only defence witness D.W.2. And from the whole evidence at the trial, there is nothing in my view which may amount to any defence to the charge against him worthy of any consideration. I agree with the Court of Appeal that the defence of the appellant at the trial was adequately considered as disclosed on the record. This issue also fails and is answered in the affirmative.
Issue (iii) is the most important one in my view in the circumstances of this case. It deals with the medical evidence on the cause of death of the deceased.
The general principle of law on this issue is that a court can rely on a medical report emanating from a medical expert to prove cause of death in murder cases but this is not in all cases necessary. A court can in the absence of a medical report, properly infer the cause of death from the evidence and the circumstances of the case. See Adamu v. Kano NA. (1956) 1FS 25 (1956) SCNLR 65; Rabiu v. The State (1980) 8-11 SC 130; Eric Uyo v. A.G. Bendel State (1986) 1 NWLR (Pt.17) 418. Where the court relies on the medical evidence to prove the cause of death of the deceased, such medical evidence must go to show clearly that the injury inflicted on the deceased, caused the death without any intervening cause or causes culminating in the death of the deceased. Where there is the slightest possibility of any such intervening factor creating the possibility that the cause of death could be through causes other than the actual injury inflicted, there is some doubt on the proper cause of death and such doubt must go to the benefit of the accused person.
In the instant appeal, there was no reliance on a medical report but the learned trial Judge relied on the evidence of P.W.1, P.W.2 and P.W.5 to find that the death of the deceased was caused by the injury on the head inflicted by the appellant. The Court of Appeal also said:-
“It is clear from the evidence of P.W.1 that the appellant caused the injury on the head of the deceased. It was this injury which led to his death as the medical officer who performed the post-mortem examination on the deceased put it unequivocally in his evidence in court as follows:- ‘In my view the cause of death is traumatic head injury’.”
It is pertinent to observe that two medical officers who examined the deceased gave evidence on the injury inflicted on the deceased at different times. These are P.W.2 and P.W.5. First to examine the deceased was P.W.2 whose testimony inter alia reads:-
“I treated a patient by name Ohaya Odialemgbe on 21/11/88, Cites history of having been hit about three months previously. I examined him I found blood cloth (sic) on the head infected. I read X-ray of the skull and there was no visible injury of the bone … On 27/11/88 the patient was brought back in a semi conscious state and he was admitted for having serious (sic) in the blood for the infected head injury. There was improvement for three day …
xx… the deceased was not regular as out patient. It is possible that other factors could have intervened to make the condition of the patient worse.” (Italics mine)
P.W.5 who performed the post-mortem examination on the deceased had this to say on his evidence in court:-
“On the 7/12/88 I performed post-mortem examination on the body of Adiolemgbe Ohaya at Ohieri Memorial Hospital Aba … The deceased appeared to be ill for sometime. There was a fresh looking swelling on the left side of parietal area of the skull. The underlying bone of the skull under the swelling had some rugged appearance indication of a spontaneously closed skull fracture … In my view the cause of death is traumatic head injury leading to infected scalp heamotone and optienia with anamia and dehydration …” (Italics mine)
The evidence of both P.W.2 and P.W.5 revealed that the deceased had suffered from the injury for some time before they examined him or treated him. In fact P. W.2 said he was told that the injury was three months old before he treated the deceased. What is significant is that P.W.2 who saw and treated the deceased when he was alive had the opportunity of taking the X-ray of the deceased’s skull and his observation was that there was no visible injury of the bone of the skull. And in cross-examination, P.W.5 himself agreed that the purpose of X-ray is to see whether there is any injury to the bone and that it could also confirm if there is skull fracture. By this he is also confirming the findings of P.W.2 that there is no visible injury of the bone of the deceased’s skull. Further more, P.W.5 in his evidence in chief testified that there was fresh looking swelling on the left side of the deceased’s parietal area of the skull which disclosed the fracture of the skull. This clearly means that the two doctors gave two contradictory stories about the same injury on the deceased. Whereas P.W.2 said there was no visible injury of the deceased’s skull.
From the X-ray made, P.W.5 said there was fresh swelling on the deceased’s skull showing a fracture of the skull. This evidence is obviously at variance with each other and could not have been properly accepted by the learned trial Judge and affirmed by the Court of Appeal. It clearly raised serious doubt as to whether the injury inflicted by the appellant on the head of the deceased when he hit him (deceased) with the kitchen stool, caused the death of the deceased especially when P.W.2 talked of the possibility of an intervening factor which might make the condition of the deceased worse. That doubt in my view, must be resolved in favour of the appellant and the appellant cannot be liable for the offence of manslaughter in the circumstances. But that is not the end of the matter. There is clear, unchallenged and unambiguous evidence of P.W.1, the deceased’s wife and the only eye witness of the incident, that the appellant hit the deceased with the kitchen stool on the head and there was swelling. This is an unlawful act constituting an offence under section 355 of the Criminal Code. I find the appellant guilty of that offence and I convict him accordingly.
In the circumstances, I find that there is merit in the appeal and I allow it. I set aside the conviction and sentence of the appellant on the offence of manslaughter. Instead, I convict him of the offence of assault occasioning bodily harm contrary to the provisions of section 355 of the Criminal Code and sentence him to 1 year imprisonment with hard labour with effect from the date of his conviction by the trial court.
SC.177/1999
