Raymond Ozo v. The State (1971)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellant was charged with the murder, contrary to section 319(1) of the Criminal Code (cap. 28 Laws of Eastern Nigeria, 1959), of one Peter Ani. He was tried by Agbakoba J. in the High Court, Enugu, convicted of the offence as charged and sentenced to death. He has now appealed to this court and the substance of his complaint is that there was no evidence of the cause of death and that it was therefore not shown that Peter Ani had died at the hands of the appellant.

The facts of the case as put forward by the prosecution are simple. The appellant was one of a number of guests who had been invited to a marriage feast by one Gabriel Ude in the evening of the 8th March, 1969, at the Iva Valley Hall.

Apart from the appellant and the other guests there was also present at the feast one Nathaniel Ozoelo who was charged on the same information as the appellant with the murder of Peter Ani. Nathaniel Ozoelo was however discharged and acquitted on a submission on his behalf that he had no case to answer after the close of the case for the prosecution. In the course of the feasting, for reasons not relevant for the purpose of this appeal, the appellant was seen beating the young man Peter Ani and according to the 1st prosecution witness, Linus Obodo:- “he hit him several times on the forehead with a stick”. The prosecution also gave evidence that the appellant had come to the party accompanied by four bodyguards of his, one of whom was the 2nd accused at the trial, Nathaniel Ozoelo. Others were Christopher and Ogbonna. Donations of money were being made by the guests and it was when Peter Ani came forward to the table at which the appellant sat collecting the donations that the appellant asked him to wait and kneel down at his (appellant’s) side. Later the appellant placed Peter Ani in the charge of his bodyguards after the deceased had been accused of being a Biafran ranger (an ascription which was certainly despicable at that time) and proceeded along the road towards the Ekulu River followed by the deceased, his bodyguards and some of the other guests. At the river the appellant drove all the others away from him except Peter Ani and his bodyguards. There was no further evidence of whatever the appellant might have done beyond this stage and the bodyguards of the appellant (apart from the 2nd accused) were neither seen thereafter nor called to give evidence. However, some three days later the corpse of Peter Ani was seen by the river lying face upwards. The discovery was made by a search party (including the appellant) after one of the villagers had alerted the others over a corpse seen by people near the river.

The appellant was then charged with the murder of Peter Ani. After his arrest he made a very long statement to the police about his movements on the night of the marriage feast and the two days thereafter. At his trial he repeated much the same story. He clearly denied having killed Peter Ani. At the trial no medical evidence was given as to the cause of death but Emmanuel Ani, 5th prosecution witness and father of Peter Ani, described the corpse thus:

“The corpse was swollen. It was laying face upwards lying on a rock. The hands were stretched behind the head.

The hands were touching the water. The corpse had a yellow knicker on. There was nothing on the body.”

Other witnesses gave a similar description of the corpse when it was discovered by the search party.

In the course of his judgment the learned trial judge directed himself as follows:

“In order to succeed, the prosecution must produce satisfactory evidence of the fact of the death of Peter Ani, the cause of his death and that it was the act of the accused which caused that death.”

The learned trial judge then stated that he accepted the evidence of the wounds on the corpse, that the wounds were grievous and mortal and that they could have been caused by the iron walking stick which it was alleged the appellant had used on Peter Ani. With regard to the absence of medical evidence concerning the cause of death, the learned trial judge observed:

“I must say a few words on the absence of a post mortem report. P.W. 12 said there was no doctor at Enugu at the time. He said there was a military doctor but he was unable to get him to perform a post mortem. It is a matter of common knowledge that Enugu had not much medical facilities let alone doctors during the war and I accept the evidence that there was no doctor to perform a post mortem. It must be noted that a post mortem report provides medical evidence of cause of death. It does not exclude other good evidence of cause of death; indeed it is desirable but not essential. R. v. Nwokocha 12 W.A.C.A. 453.”

We recall that after the 3rd prosecution witness, Gabriel Ude, was sent away by the appellant on the way to the Ekulu River, there was no one else with the appellant and Peter Ani other than the appellant’s bodyguards who had not been traced since that night. There was therefore no eye witness of what followed thereafter and the learned trial judge indeed found as such observing however that since that night Peter Ani had not been seen alive. The learned trial judge expressely accepted the evidence given by the prosecution witnesses and rejected the story of the defence. He considered the evidence in the case extensively and concluded that there was circumstantial evidence which established that the appellant was the killer of Peter Ani. We are, of course, unable to agree with the learned trial judge on this point. According to his own direction it is the duty of the prosecution to prove that the death of Peter Ani was the handwork of the appellant. If no one else was in any position to tell the court what had happened at or beyond the Ekulu river and there was no medical evidence of the cause of death, it is idle to contend that the prosecution had proved beyond reasonable doubt that it was the appellant who had killed the deceased.

In R. v. Nwokocha, supra, on which the learned trial judge relied, there was in fact no medical evidence of the cause of death and although the West African Court of Appeal pointed out, as stated by the learned trial judge in the case in hand, that medical evidence was not indispensable yet the court observed at p. 455 of the report as follows:

“As regards the proof of the cause of death we agree that medical evidence, though desirable, is not essential. But to make the accused criminally liable in cases of this kind, there must be clear evidence that the death of the deceased was the direct result of the negligence of the accused to the exclusion of all other reasonably possible causes. We hold that in this case the cause of death was not proved beyond reasonable doubt and that in any event the degree of negligence proved against the appellant was not sufficient to justify a conviction for manslaughter.”

The position in law is that if no medical evidence is available or sought there must be in order to establish the cause of death, evidence compelling the inference that the deceased died as a result of an act or omission of the person charged with causing his death. Evidence short of this will not prove beyond reasonable doubt the guilt of the accused person and indeed such evidence must leave room for inferences which are equally consistent with the innocence of the accused person.

In the case in hand, the learned trial judge himself had observed that there was no eye-witness to the killing of Peter Ani. He was at pains to consider what he described as the circumstantial evidence of the guilt of the appellant but we are unable to subscribe to his views that there was in this case such circumstantial evidence as inevitably suggests that it was the appellant who by his action or omission had caused the death of Peter Ani. We conclude therefore that evidence of the cause of death of the deceased is lacking in this case and a fortiori there is no evidence indicating that the death of the deceased was the work of the appellant. The action of the appellant on the night of the party in the house of the 3rd prosecution witness was despicable and his conduct was outrageous in the extreme; but the principles of the law must be observed in order to establish that he had committed the crime of murder.

The appeal must and does succeed. The conviction of the appellant for murder is hereby quashed and the sentence of death passed on him is set aside. We enter a verdict of acquittal and discharge in his favour.

Appeal allowed. Conviction quashed. Sentence of death set aside.

SC.252/1970