The Attorney-general of the Federation V. Pius Ogunro & Anor. (2001)

LawGlobal-Hub Lead Judgment Report

DAHIRU MUSDAPHER, J.C.A.

In the High Court of Justice of the Federal Capital Territory Abuja, and in Charge No. FCT/HC/CR/1/96, the respondents herein, were arraigned before Saleh C.J on the following heads of charge:-

“1. That you, PIUS OGUNRO (m), 43 years of Area 1, Section 1, Block 1, Flat 6 Lapai Street, Garki Abuja, and EBENEZER OGUNMOLA (m), 43 years of Alfa Clinic Karu, Abuja, on or about the 12th day of September, 1995, in Karu, in the Federal Capital Territory, within the jurisdiction of the Federal Capital Territory Judicial Division, did conspire to commit an offence to wit; causing miscarriage on Miss Christiana Ngozi Eze, 19 years (now deceased) of Area 1, section 1, Garki Abuja, and thereby, committed an offence punishable under section 97, of the Penal Code and triable by the High Court.
2. That you EBENEZER OGUNMOLA (M), 43 years of Alfa Clinic Karu-Abuja, on or about the 15th day of October, 1995, in Karu in the Federal Capital Territory, within the jurisdiction of the Federal Capital Territory Judicial Division, committed an offence to wit you caused Miss Christiana Ngozi Eze (F), 19 year (now deceased), to miscarry by Carrying out an operation on her, as a result of which she died in December, 1995, and you thereby committed an offence punishable under S. 233 of the Penal Code and triable by the High Court.
3. That you Pius Ogunro (M), 43 years of Area 1, section 1, Block 1, Flat 6, Lapai Street, Garki, Abuja, on or about the 14th day of October, 1995, in Garki within the jurisdiction of the Federal Capital Territory Judicial Division, abducted one Miss Christiana Ngozi Eze (now deceased), and took her to Alfa Clinic Karu, with the intention of carrying out miscarriage on her, thereby, committed an offence contrary to S. 273 of the Penal Code and triable by the High Court.”

The respondents respectively pleaded not guilty, to the heads of charges. At the trial, the prosecution called five witnesses in proof of the charges, while in their defence the respondents called seven witnesses. At the conclusion of the evidence and address by counsel and in his judgment, the trial Judge Saleh C.J. on the 14/10/1997, discharged and acquitted each of the respondents, on all the heads of charge. Dissatisfied with the decision, the Attorney-General of the Federation, has now appealed to this court. It is with the leave of this court, that an amended notice of appeal, containing three grounds of appeal was filed. The grounds in the amended notice of appeal are:-

“1. The decision of the learned trial Chief Judge is unreasonable, unwarranted, having regards to the evidence adduced.
2. The learned trial Chief Judge erred in law when he held as follows:
I accept Exhibit 6 as a more convenient and relevant cause of death being case notes of Wuse General Hospital, where the deceased has been on admission for eighteen days before she died.”
PARTICULARS
a. Cause of death of a deceased person is not determinable by tendering case notes in Court.
b. The authentic way of determining a cause of death, is by way of tendering a post mortem report in court.
c. Post-mortem report produced without being influenced by what is contained in case notes, is more objective and will carry more evidential value.
3. The learned trial Chief Judge failed to give reason why he rejected Exhibit I as evidence of an expert.
PARTICULARS
a. DW1, DW4, DW5 and DW7’s evidence the trial Judge relied upon in rejecting Exhibit I are not evidence of a pathologist.
b. The evidence of PW1 being an expert evidence and uncontradicted by another expert evidence, ought to be believed and acted upon.”

In compliance with the provisions of Order 6 of the rules of this Court briefs of argument were filed and exchanged and at the hearing of the appeal learned Counsel proffered oral arguments in the elaboration of the submission canvassed in their written briefs.

But before the examination of issues submitted to this court for determination, it is necessary at this stage to state, be it in brief, the facts of this case. Miss. Christiana Ngozi Eze, aged 19 now deceased, was the girl friend of Pius Ogunro, the 1st respondent herein. As the friendship blossomed, Ngozi became pregnant. Pius Ogunro was happy and arranged for her ante-natal clinic, with the 2nd respondent Dr. Ogunmola of Alia Clinic at Karu Abuja. On the 8/12/95, when the 1st respondent took her to the clinic aforesaid, there was a problem of coughing and the 2nd respondent advised that she be taken to a hospital for tests to be carried out. The 1st respondent took her to the General Hospital Wuse, where she was admitted, until she died on the 25/12/1995.

When she was admitted, she was suffering from breathlessness and was in bad condition. She was admitted for eighteen days, before she died. She was advised to terminate the pregnancy in order to save her life but she refused. When she died, the Hospital issued a report indicating that Ngozi died as a result of congestive Cardiac failure. The family of the deceased, Mr. O. C. Akpa. PW5, complained to the Commissioner of Police Abuja, that the respondents committed abortion on the deceased and accordingly, rejected the medical report submitted by the General Hospital. Whereupon, a post mortem examination was ordered to be carried out. The post-mortem examination was carried out by Dr. Rafiu Dadi of the Department of Pathology, Ahmadu Bello University. The examinations conducted at Gwagwalada Specialist Hospital, on the 2/2/1996, in the presence of four other doctors and the police, Dr. Rafiu Dadi, gave evidence at the trial and his Post-Mortem Report was admitted in evidence. In his evidence Dr. Rafiu Dadi stated. “I took part of the liver, kidney and cervix part of the body for examination, (but) it is routine to do so. Exhibit I (The Post Mortem Report), does not include the examination carried out. But Sack is infected and infection, is an injury. There was water in the sack. I did not see any puncture with my eyes. There was a baby inside the womb. x x x x”. Earlier on he said “cause of death is blood loss, due to criminal abortion.” But according to doctors of Wuse General Hospital, the cause of death was due to Cardiac failure and that there was no evidence of any attempted abortion.

In his judgment, the learned trial Chief Judge faced with the conflicting expert evidence said “I accept Exhibit 6, as a more convenient and relevant cause of death, it being the case notes of Wuse General Hospital, where deceased has been on admission for eighteen days before she died. x x x x Post-mortem examination (Exhibit 1 and PW 1) that disregarded the notes, when they exist x x x x. I reject what Exhibit 1 says is the cause of death, as evidence of experts DW1, DW3, DW4, DW5 and DW7 sum up to correct medical situation. I accept their testimonies and reject that of PW 1. Prosecution has failed to prove any ingredient of any of the three charges as required of it by S.137 Evidence Act as to burden of proof. x x x x”.

I shall now discuss the issues as argued by the learned Counsel together. That is –

Whether cause of death can be determined by tendering case notes of Wuse General Hospital and whether the trial Judge failed to give reason for rejecting Exhibit I?

It is submitted that cause of death can be proved by the evidence of witnesses, who saw the very act that caused death or by medical evidence of an expert who examined the dead body and proffer opinion as to the cause of death. Emwenya v. A.-G. of Bendel State (1993) 6 NWLR (Pt. 297)29;(1993) 6 SCNJ 166 at 170. But an expert under S. 57 of the Evidence Act must be specially skilled in the field. See Okoagwu Azu v. The State (1993) 6 (NWLR) (Pt. 299) 303 (1993) 7 SCNJ 151 at 157, Ajani v. Comptroller of Customs (1952) 14 WACA 36. PW 1 is a pathologist and his opinion after examining the body that the cause of death “was loss of blood due to criminal abortion” ought to be accepted.
By virtue of S. 41(1)(a) of the Evidence Act, Exhibit I, as a Certificate from a pathologist, is sufficient evidence of the fact stated therein. See Solomon Ehot v. The State (1993) 4 NWLR (Pt. 290) 644; (1993) 5 SCNJ P. 65 at 67.

It is submitted further, that there is no other certificate contradicting Exhibit I, and the evidence of DW1, DW2, DW3, DW4, DW5 and DW7, who are not pathologists, cannot override Exhibit I. It is urged on this Court, to accept Exhibit I as the authentic cause of death.

It is further submitted, that the learned trial Chief Judge was in error to have rejected Exhibit I, the Post-mortem Report without giving reasons. Exhibit I, is the opinion of an expert and by virtue of S. 57 of the Evidence Act is acceptable in evidence. There is no doubt that PW1 is an expert and his testimony is at least, corroborated by DW6, who testified that when the deceased went for cough investigation, the result was negative, and that he found traces of blood in her private part. It is again submitted that evidence of DW1, DW5 and DW7 are contradictory and irreconcilable and the trial court was in error to have relied upon their evidence. The only evidence showing cause of death was Exhibit I, and the learned trial Judge was wrong to have rejected it.

For the 1st respondent, it is submitted that it was the appellant that tendered both Exhibits 1 and 6 and the trial Chief Judge appraised the evidence before him, before he accepted Exhibit 6 as the cause of death and rejected Exhibit 1. Learned Counsel referred to Jonas Ahmed v. The State (1999) 7 NWLR (Pt.613) at 641 at 645. Effia v. The State (1999) 8 NWLR (Pt.613) 1 at 3, Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252. Exhibit 6 tendered by the Prosecution is the Medical Report on the cause of death from Wuse General Hospital, where the deceased was on admission, receiving treatment for eighteen days before she died. The learned trial Chief Judge was right in accepting the Exhibit 6 and the reasons he gave for rejecting Exhibit 1 and the evidence of PW1 were justified.

For the 2nd respondent, it is submitted that the learned Chief Judge is not compelled to accept the evidence of PW1 and Exhibit I, hook line and sinker, having regard to the other evidence available to the court as to the cause of death. It is submitted that the crux of the prosecution’s case was that the respondents committed an abortion on the deceased, on 12/9/1995, and in the process punctured the gestitinal sack, which caused the loss of fluid in it, and the blood of the deceased, which resulted in her death on the 25/12/1995. However, on the other hand, there is also the evidence of DW 1, 2, 3 and 5 all Consultant Medical doctors, which maintained if the fluid and blood drained, a well formed baby could not be found in the sack after twelve weeks. In fact, the pregnancy will be lost within 48 hours.
It is further submitted that PW1 admitted that he needed to see the case notes on the deceased, before he could say whether the blood loss was acute or not. It is also submitted that PW1 took tissue samples of lung, liver and other organs for histological study, but nothing came out of the further examination and as such, it could not be safe to say that Exhibit 1, is a complete report. It is further submitted that the trial Judge, clearly weighed and considered both Exhibit 1 and Exhibit 6 before he accepted Exhibit 6 as the cause of death.

It is further submitted that, PW1 admitted that he did not read the case notes of Wuse General Hospital, though he agreed that, it is relevant in considering the cause of death.

Now, it should be noted that respondents were arraigned before the trial court, on three heads of charges under S. 97 Conspiracy, S. 233 death caused by act done with intent to cause miscarriage and 273, kidnapping or abduction all under the Penal Code law of the former Northern Region of Nigeria applicable to the Federal Capital Territory, Abuja. But the appeal is limited to the question of “cause of death” under S. 233. That means that, the prosecution is not concerned with the discharge and acquittal of the respondents for the offences charged under S. 97 and 273 of the Penal Code. The complaint is limited to the offence under S. 233 of the Penal Code.

Now, S. 233 of the Penal Code provides:-
“Whoever with intent to cause the miscarriage of a woman whether with child or not does, any act which causes the death of such woman, shall be punished:-
(a) With imprisonment for a term which may extend to fourteen years and shall also be liable to fine; and
(b) If the act is done without the consent of the woman, with imprisonment for life or for any less term and shall also be liable to fine”.
Accordingly, to ground a conviction under this section, it is necessary for the prosecution to establish by credible evidence the cause of death of the woman and that, it was the act of the accused, the respondent in this case done, with the intent to cause miscarriage, that resulted in the death of the deceased. It is common ground in the instant case, that Christiana Ngozi Eze died at the Wuse General Hospital on the 25/12/1995. It is also undisputed that at the crucial time she was pregnant. The question to be discussed, is whether the prosecution has established that it was the respondents with intent to cause her miscarriage did some acts that caused her death. It is therefore, necessary to know the cause of death of the deceased.
In their attempt to do so, PW1 gave evidence to the effect that “cause of death is blood loss due to criminal abortion”. In my view, the pathologist could only testify to the fact that death was caused by loss of blood due to abortion, he was not in a position to say it was a “criminal abortion”, he was not there when whatever occurred had happened. What he said was mere speculation. Under our criminal jurisprudence, it is now settled beyond any dispute that generally, the burden of proof is always on the prosecution and except in a few isolated cases, it never shifts on the person accused of committing a crime. In a charge under S. 233 of the Penal Code, the prosecution must prove unequivocally the cause of the death of the deceased and failure to do so is fatal to the case of the prosecution, the effect of which is that the accused must be discharged. See for example Lori v. The State (1980) 8 – 11 SC 81; Omogodo v. The State (1981) 5 SC 5. To prove the cause of death in the instant case, the prosecution called medical expert PW1 the pathologist, and also tendered the post-mortem report. In my view, where an expert witness testifies, the written report of his findings is hardly relevant. The reference therefore, to the medical report prepared by PW1 that is Exhibit 1 is therefore irrelevant, the post-mortem report should not have been admitted, however, be that as it may be. Though, it is not always necessary to prove cause of death by medical evidence. See Ogba v. The State (1992) 2 NWLR (Pt.222) 164, but bearing in mind, the peculiar facts of this case, it is necessary to prove cause of death by medical evidence. The prosecution, as mentioned above, called PW1 the pathologist. The prosecution also tendered Exhibit 4, which is a medical report on the deceased written on the 8/1/1996. It provides:

“The patient reported at the Hospital on the 8/12/1995, and gave the following medical history. That she was 19 years old girl, residing at Karma in Abuja Municipal Area Council. She gave a history of cough and bloody sputum of 10 months duration, left sided chest pain and 4 months of non-menstruation. x x x x.

A diagnosis of congestive cardiac failure (CCF) in pregnancy was made, and treatment started.

The patient steadily improved but suddenly deteriorated and died on the 25/12/1995.”

The prosecution also tendered Exhibit 6, which is a letter addressed to PW1 by three doctors, including the 2nd respondent, who were present during the post mortem examination conducted by PW1. In the said letter, the Post-mortem report issued by PW1, was challenged on a number of grounds, e.g. No mention was made on the examination of the tissues samples collected during autopsy and most importantly at the examination, it was found “An instant pregnant uterus of about 10 weeks there was no perforation. The amniotic sack and fluid were intact. There was no laceration of the cervix. x x x x .”

Now DW1 did not agree with Exhibit 1, and the evidence of PW1. DW1 stated that there was no evidence of tampering with the pregnancy of the deceased, and she died of heart failure. DW2, who is also a pathologist, who assisted PW1 in the autopsy, claimed to have found no evidence of interference with the pregnancy.

The learned trial Judge was saddled with the conflicting evidence as to the cause of death, what was he to do. It is the law that the cause of death must be certain in order to hold an accused liable, it must be conclusively proved that it was the act of the accused that caused the death of the deceased. See Mamman Bande v. The State (1972) 10 SC 79. The evidence adduced must be unequivocal, that it was the accused that caused the death of the deceased. So in a situation in which there is contradiction in the evidence adduced by the prosecution or where the defence adduced evidence as to render the cause of death suspicious under such a situation, it cannot be said that the prosecution have proved the cause of death beyond reasonable doubt. See Sabo Kumbul v. The State (1973) NMLR 132. Now the prosecution tendered both Exhibit 1 and Exhibit 6. These documents contradict each other as to the cause of death. There is clearly, doubt as to the cause of death, an accused in such a circumstance is entitled to an acquittal. See Kwaghshir v. State (1995) 3 NWLR (Pt.386) 651, Ogunlana v. State (1995) 5 NWLR (Pt.395) 266.

Another important point, is that the evidence of PW1 as to the cause of death, even according to the witness himself, could not be complete, without reference to the hospital notes which were not available to him, again the witness did not show the impact of the tissue samples which he took during the autopsy. In my view, the learned trial Judge was right in not accepting the evidence of PW1 and Exhibit 1, as to the cause of death. A trial Judge is entitled to reject a medical report of a postmortem examination, where it is shown that the examination is not complete or where the report is shown to be unreasonable from the circumstances disclosed by the evidence before him. See Bwashi v. State (1972) 6 SC 93. In any event, the burden of proving the guilt of an accused, as mentioned above, in a criminal prosecution, is on the prosecution and such guilt, must be proved beyond reasonable doubt. The prosecution cannot succeed in establishing the guilt of the accused unless, he not only establishes the cause of death, in the charge under reference, but establishes in addition that, the act of the respondents caused the death of the deceased. There was no evidence whatever, that it was the respondents that attempted to cause the miscarriage of the deceased in the instant case. See for example, Omogodo v. State (1981) 5 SC 5.

What the learned trial Chief Judge did in the instant case was to reject the evidence of PW1 and Exhibit 1 as the established cause of death, his reference to his preference of Exhibit “as a more convenient way” of proving cause of death, is really not important. The important matter is whether the learned trial Judge was satisfied that Exhibit 1 and the evidence of PW1, established the cause of the death of the deceased. Considering the entire evidence adduced at the trial, I am of the opinion that the cause of death, was not proved beyond reasonable doubt, as is required under our system of jurisprudence. I am also satisfied that the learned trial Judge has given adequate reasons, for rejecting both Exhibit 1 and the evidence of PW1.

I may also add that the prosecution had the duty of proving that it was the act of the respondents that caused the death of the deceased. There was no evidence whatever, indicating that it was the respondents, that caused the deceased to miscarry. Nobody has testified on the acts or omissions of the respondents. Even if it is established that the deceased died as the result of an attempted abortion, the prosecution must prove by credible evidence that it was the respondents that were responsible.

I accordingly, resolve the two issues submitted for the determination of the appeal in favour of the respondents. This appeal is accordingly, doomed to fail and I dismiss it. I affirm the decision of the trial court.

Other Citations: (2001)LCN/0938(CA)