Ugwuezumba Onwukiru V. The State (1999)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
In an information in charge No. HOG/2C/88 filed at the Oguta High Court of Imo State, the appellant was the first of the nine accused persons charged with the offence of murder contrary to section 319 of the Criminal Code, Cap 30, Vol. 11, Laws of Eastern Nigeria, 1963 applicable to Imo State. According to the particulars of the offence, it was alleged that the nine accused persons all of Uba Agwa in the Oguta Judicial Division did on 13th August, 1987 at Uba Agwa murder one David Njirizu hereinafter referred to as the deceased.
At the trial, the prosecution called five witnesses and the accused persons one. The case advanced by the prosecution may be epitomised as hereunder. On 7th August, 1987, at about 6 p.m., Chibuzor Nlemoha (PW1) was at his home in Uba Agwa eating. Suddenly, he heard a voice in Ibo saying ‘beat him, beat him’. He came out to see what was happening. He got to a nearby orange tree and saw the appellant (1st accused) as he slapped the deceased. As the deceased was shouting and asking what he had done, the appellant picked a piece of wood and hit the deceased on the head. The deceased fell down unconscious. The P.W.1 raised an alarm which attracted one Leonard Nnadike (P.W.3) to the scene. Both P.W.1 and P.W.3 carried the deceased to the base of a nearby tree. At the instance of P.W.3, P.W.1 sought for and called a relation of the deceased by name Chief Fidelis Ikwu (P.W.4) who on arrival at the scene and having seen the bad condition of the deceased went to lodge a report to the police and on the arrival of the police, the deceased was conveyed to a hospital known as the New Life Hospital, Agwa. There, he was admitted and treated by Dr. Charles Nwabueze Ikeji (P.W.2) who observed he had pain in the stomach and being of the view that his condition was bad referred him to the General Hospital, Owerri where he later died on 13th August, 1987. A medical report of his death Exhibit (L) was made by Dr. H.O. Ihezue, a Senior Medical Officer at the General Hospital, Owerri. A police corporal Lawrence Okolie (P.W.5) then serving at the Oguta police station completed the investigation already undertaken by the Agwa police post. He visited the scene of crime and recovered a bicycle fork (Exhibit M). He also recorded Statements of the accused persons.
The star witness for the prosecution Chibuzor Nlemoha (P.W.1) made a Statement to police (Exhibit A) in which he Stated that the appellant took an iron-fork of bicycle and hit the deceased on the stomach as a result of which the deceased fell down unconscious. This Statement Exhibit “A” was tendered through him in the course of proceedings to contradict his oral testimony in court. Another vital witness called by the prosecution was Leonard Nnadike (P.W.3) who it appeared was the first to get to the scene of crime on hearing the alarm raised by P.W.1. The Statement Exhibit “B” made by P.W.3 to the police was also tendered in evidence and with the leave of the court, the P.W.3 was treated as a hostile witness for according to the prosecution his oral testimony was materially different from his Statement to the police Exhibit “B”.
After the investigating police officer (P.W.5) had concluded his evidence, learned counsel representing the accused persons intimated that he was resting his case on that of the prosecution. Thereupon learned counsel on both sides addressed the court and on 11th January 1993 the case was adjourned to 25th March, 1993 for judgment. On that date however, the learned trial Judge did not deliver the judgment. Instead, he reopened the hearing on the ground that the post-mortem report on the deceased (Exhibit L) contained medical terms which needed to be explained to the court. The case was then adjourned for P.W.2 to be recalled to explain the medical terms in Exhibit “L”. The prosecution made him available and he gave evidence a second time and was duly cross-examined. As the defence did not quite agree with his opinion on Exhibit “L”, the defence with the leave of the lower court called another medical doctor Dr. Donatus Sunday lzuagbe (D.W.1) to offer opinion on the medical report.
Thereafter both counsel addressed the court and judgment was reserved.
In his reserved judgment delivered on 28th July, 1993, the learned trial Judge Njiribeako J., convicted and sentenced the appellant to death while discharging and acquitting the other accused persons. Dissatisfied by that judgment, the appellant has now appealed to this court. His notice of appeal contained only one ground of appeal but with the leave of this court, an amended notice of appeal was filed with the inclusion of five additional grounds of appeal. The appellant’s brief of argument was filed on his behalf by his counsel. The brief is dated 19th January, 1994 and was filed on 24th January, 1994. The respondent also on 4th March, 1994 filed its brief of argument dated 2nd March, 1994. In the appellant’s brief of argument, the following two issues were formulated for determination. These are:-
“(a) Whether or not the learned trial Judge rightly applied the evidence led at the trial against the appellant.
(b) Whether the conclusion drawn by the learned trial Judge that the reluctance of the witnesses to give evidence against the appellant bordered on collision of (sic) between the witnesses and the defence is justified.”
The respondent on the other hand advanced only one issue for determination which reads:-
“Whether the conviction of the accused/appellant could be sustained considering the evidence adduced at the trial.”
I consider the issue formulated by the respondent which is substantially the same as issue (a) in the appellant’s brief germane to this appeal.
To sustain a conviction for murder in this case, it must be established that it was the appellant who assaulted the deceased and that it was that assault that caused the death of the deceased: See R. v. Samuel Ahengowe (1936) 3 WACA 85; R. v. William Oledinma (1940) 6 W.A.C.A. 202; Frank Onyenankeya v. The State (1964) NMLR 34.
In the case in hand, it is necessary to determine whether there is credible evidence that the appellant dealt a blow on the deceased and whether it was that blow that led to the death of the deceased.
P.W.1 and P.W.3 gave evidence on the circumstances surrounding the death of the deceased but P.W.3 was treated as a hostile witness the effect of which is that his evidence was disregarded. There is no complaint about this. The only evidence left on how the deceased was severely attacked was that of P.W.I. In his evidence at p.38 lines 18 to 20, he said-
“1st accused (appellant) Picked up a piece of wood and hit the deceased on the head. The deceased fell down and fainted and I started to shout.” (Italics supplied)
In his extra judicial Statement to the police exhibit “A”, P.W.1 Stated thus:”
Ugwuzurumba Onwukiru (appellant) ran and took an iron-fork of bicycle and hit David on the stomach and David fell down unconscious.” (Italics supplied)
In his judgment on that issue, the learned trial Judge at p.65 lines 1 to 13 had this to say:-
“Prosecution witnesses were not willing to tell the court what they told the police just a few days after the assault. They were not willing to say as they said in their Statement that 1st accused used a heavy piece of metal, the bicycle fork which was recovered during investigation and admitted as Exhibit “M” to deliver the fatal blow.”
P.W.1 said that what 1st accused used was wood. He clearly contradicted his Statement to the police Exhibit “B” (sic) as to the weapon used.”
And at p.66 lines 30 to p. 67 line he concluded thus:-
“It was clearly the blow by the 1st accused on the abdomen of the deceased that led to the death of the deceased, whether the blow was with wood or piece of metal, the result was the same.”
Learned counsel to the appellant has attacked the above finding of the learned trial Judge. He submitted that the nature of instrument used in inflicting injury on the deceased is very material and a contradiction as to the nature of the instrument is a material contradiction. In supporting the above finding of the learned trial Judge, learned counsel to the respondent argued that the oral testimony of P.W.1 and his extra judicial Statement Exhibit “A” were consistent as to the appellant hitting the deceased into a State of unconsciousness. He argued that the inconsistency as to the nature of weapon used whether wood or metal and the inconsistency as to what part of the body was hit, whether the head or the stomach are not material contradictions. With respect, I do not share this view.
A piece of evidence contradicts another when it affirms the opposite of what the other evidence has Stated not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent: See Gabriel v. State (1989) 12 SCNJ 33; (1989) 5 NWLR (Pt. 122) 457. In the case of Onubogu v. The State (1974) 4 ECSLR p. 403; (1974) 9 S.C. 1 contradictions and inconsistencies in the evidence of prosecution witnesses as to where the spear, the weapon allegedly used to commit the offences was procured from; whether the injury inflicted on the complainant was caused by it, whether it was the weapon used to damage the property of the complainant and how it eventually reached the police station at which the complaint was lodged were treated as “material. A fortiori, contradictions as to the weapon used in inflicting injury on the deceased, that is whether an iron fork or a piece of wood and on the part of the body hit, whether the head or stomach are in my humble view material contradictions.
It has long been settled that where a witness makes a Statement which is inconsistent with his testimony, such testimony is to be treated as unreliable, while the Statement is not regarded as evidence upon which the court can act. This was the decision in the case of R. v. Golder (1961) 1 WLR 1169, 1172 where Lord
Parker in the English Criminal Court of Appeal Stated thus:-
“In the judgment of this court, when a witness is shown to have made previous Statement inconsistent with the evidence given by that witness at the trial, the jury should not only be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous Statement whether sworn or unsworn do not constitute evidence upon which they can act.”
This case was adopted with approval by the Supreme Court in several decisions: See Queen v. Ukpong (1961) 1 All NLR 25 (1961) 1 SCNLR 53; Jizurumha v. The State (1976) 3 S.C. 89, William v. The State (1975) 9/11 S.C. 139, Stephen v. The State (1986) 5 NWLR (Pt. 46) 978, Onuhogu v. The State (supra), Saka Oladejo v. The State (1987) 3 NWLR (Pt. 61) at 419 at 427.
In the case under consideration, since the testimony of P.W.1 contradicts his previous Statement to the police Exhibit “A” in material respects, neither the testimony nor the previous Statement constitutes evidence on which the court could have acted in convicting the appellant. The fact that the P.W.1 might have been motivated by a desire to see that the accussed persons were not convicted does not justify a departure from this well settled principle. It seems to me therefore that since the evidence of P.W.1 that the appellant hit the deceased is unreliable and this being the only piece of evidence relied upon by the prosecution to link the appellant with the injury inflicted on the deceased, the prosecution had failed woefully to establish that it was the appellant that caused the death of the deceased. This conclusion is sufficient to dispose of this appeal in favour of the appellant but since this appeal raises the question of the evidential value of a medical report in proving cause of death, I am constrained to consider it.
In an effort to prove that it was the injury inflicted on the deceased that led to his death, the prosecution called Dr. Ikeji (P.W.2) to testify. He was not the doctor who performed post mortem examination on the deceased. He however saw the deceased after the injury was inflicted on him. He gave account of his observation about the condition of the deceased when he was brought to the New Life Hospital where P.W.2 was then working. P.W.2 was also recalled to give explanations on the technical terms used in the medical report Exhibit “L”. The prosecution relied heavily on Exhibit “L” and the interpretation thereof to establish cause of death. Exhibit “L” was tendered by the investigating police officer F (P.W.5) because it was alleged that the whereabout of the Senior Medical Officer of the Owerri General Hospital, Dr. Ihezue who carried out an autopsy on the deceased was unknown. It is not clear who gave the court the information that Dr. Ihezue was not available as the information did not appear to emanate from any of the five witnesses called by the prosecution. There is however no complaint about that. Before considering the contents of the medical report Exhibit “L” it is necessary to advert to its admissibility in evidence. This will require an examination of the statutory provisions which appear to have bearing on the subject. I will start first with section 91(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 which deals with the admissibility of documentary evidence. The section reads in part thus:-
“91(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any Statement made by a person in a document and tending to establish that fact shall on production of the original document, be admissible in evidence of that fact if the following conditions are satisfied.” (Italics supplied)
As the above provision applies only to civil proceedings and has no application to criminal proceedings, it has no relevance and its further consideration is unnecessary.
I will now refer to section 34 of the Evidence Act supra which in part provides as follows:-
“34(1) Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceedings, or in a later stage of the same judicial proceeding, the truth of the facts, which it States, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considered unreasonable”. (Italics supplied).
As the section relates to evidence given in a judicial proceeding or before any person authorised by law to take evidence, it is clearly inapplicable to a medical report. A provision that appears relevant is section 42(1) (a) of the Evidence Act (supra ) It provides inter alia, thus:-
“42(1)(a) Either party to the proceedings in any criminal case may produce o a certificate signed by the Government Chemist, the Deputy Government Chemist, an Assistant Government Chemist, a Government pathologist or entomologist, or the Accountant-General or any other chemist so specified by the Government Chemist of the Federation or of the State, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of the State and the production of any such certificate may be taken as sufficient evidence of the facts Stated therein…”
By the above provision, it would appear that a medical report or certificate issued by a medical doctor who is a pathologist is admissible in evidence in a criminal proceeding. This view is supported by the recent decision of the Supreme Court in the case of Solomon Ebot v. The State (1993) 4 NWLR (Pt. 290) p. 644 at pp 657 and 658 where Belgore J.S.C delivering the lead judgment of the court said:”
The report of the medical officer is the certificate envisaged by S.41(1) (a) Evidence Act. Medical Officer in the service of a State for the purposes of understanding post-mortem examinations is a pathologist and his certificate is sufficient evidence of the facts Stated therein…
Exhibit 1 clearly showed the cause of death was due to shock arising from haemorrhage. There was no other internal injury that could have contributed to the deceased’s death. ”
It was recognised in the case of David Ifenedo v. The State (1967) NMLR p.200 that a medical report is inadmissible in evidence in examination-in-chief but only in cross-examination. In that case, the Supreme Court per Brett J.S.C. at p. 203 observed thus:
“It appears from the deposition that at the close of his examination in chief, the doctor produced a report which he made on Form D in the First Schedule to the Coroner’s Act and that the report was received in evidence. It was clearly inadmissible at that stage. The doctor might properly have been allowed to refresh his memory from the report under section 215 of the Evidence Act and the defence would then have been entitled to see it and cross-examine on it, in which case it might have been produced in evidence but it ought not to have been produced in the doctor’s evidence in chief.”
The above decision was followed by the Supreme Court in its later decision in the case of Owanso Agbeyin v. The State (1967) NMLR p.129. In the case of Oshuntaye v. Commissioner of Police (1960) WNLR 216 it was held that the admissibility of a medical report in lieu of medical evidence given at a trial by a doctor was wrongful and fatal to the case. The view has also been expressed that it is wrong to admit the medical report which is an expert opinion through a third party not only because it infringes the rule that the maker of a document be called for cross-examination but also because section 56 of the Evidence Law makes no provisions for that course. See Chibueze Ogbodo and Anor v. Commissioner of police (1972) 2 ECSLR (Pt. 11) 719.
From the plethora of the authorities referred to above, it does seem to me that the admissibility of a medical report in a criminal proceeding is not entirely free from obscurity. The situation calls for a review.
It is trite law that where there are two conflicting decisions of a superior court, an inferior court is at liberty to decide which of the decisions to apply in a case before it: See Salmond on Jurisprudence 11th Edition p.207,Adegoke Motors v. Adesanya (1988) 2 NWLR (Pt. 74) 108, Onuoha v. Okafor (1983) 2 SCNLR 244 at 263.
In the case under consideration, even if I should prefer to follow the decision in the recent case of Solomom Ebot v. The State (supra), I am still bound to consider whether the medical report Exhibit “L” was issued by a Government pathologist. There being no evidence on the printed record that Dr. Ihezue who issued it is a Government pathologist, I am constrained to hold that the said medical report Exhibit “L” was inadmissible and was wrongly admitted in evidence. That being the case, there was therefore no credible evidence before the court to establish that the deceased died of the injury inflicted on him on that fateful day,
In case I have taken a mistaken view of the law and on the assumption that Exhibit “L” was rightly admitted in evidence, I will now advert to its contents to see if it is evidence of cause of death of the deceased. The relevant part of Exhibit “L” reads thus:-
“History of Trauma on left abdomen on 7/8/87. Admitted 10/8/87 referred by a private clinic at Agwa. Finding:-casualty-bruise wound on left groin: Autopsy-multiple-3 preforation of small intestine with diffuse perulent peritonitis. Cause of Death-Septicaemic-shock following purulent peritoni-tis-cause R/O perforated typhoid. N.B. patient looked jaundiced and emaciated. Natural death.”
In his explanation of the report, Dr. Ikeji (P.W.2) said that doctor who wrote Exhibit “L” has as the primary cause of death-Septicaemic shock. He further explained that peritonitis that is inflamation of peritoneum (the covering of Iabdominal cavity) deteriorates to septicaemic and that one of the causes of peritonitis is injury inflicted on the abdomen by a blow with a blunt instrument. On being asked of his opinion on the part of Exhibit “L” which Stated that death was due to natural causes, P.W.2 replied that from the findings made on Exhibit “L”, he could not subscribe to the view that death was by natural causes. In his own interpretation of Exhibit “L”. Dr. Izuagba (D.W.1) expressed the opinion that the cause of death was septicaemic shock following the peritonitis. He also believed that the deceased had typhoid fever and that death was natural. In answer to a question whether a blow on the abdomen with a blunt instrument could cause perforations in the intestine, the witness said it could provided the intestine was inflated. He howeveremphasised that the autopsy did not show any nexus between the alleged blow on the abdomen and the perforations. In his findings in respect of the cause of the death of the deceased, the learned trial Judge at p.65 lines 28 to 30 of the record said:-
“I have reproduced the evidence of Dr. Ikeji above. The defence also invited another doctor to explain post-mortem Exhibit “L”. There is not much disparity between their views.”
And at p.66 lines 19 to 30 he continued.
“Mr Unyimadu defence counsel has relied very much on that part of the post-mortem report Exhibit “L” which States simply “Natural death”. In my view, death from septicaemic shock will be natural. But what is not natural is septicaemic shock. The deceased was not in a State of shock before the assault. Something that happened to him caused that State. It was the vicious blow on his abdomen which led to the inflamation of the peritoneum, that is, which caused the peritonitis and which led to the septicaemic shock. There is no other explanation for the cause of death.”
Learned counsel to the appellant has attacked the above findings. He submitted that P.W.2 and D. W.1 did not agree on whether death was due to natural cause. He also argued that there was no evidence that septicaemic shock cannot occur as a result of natural causes and that there was no basis for the learned trial Judge holding that there was no other explanation for the cause of death. In his reply, learned counsel to the respondent contended that there is no disagreement between P.W.2 and D.W.1 that the cause of death was septicaemic shock resulting from purulent peritonitis.
The law is well settled that in a criminal trial the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt vide section 138(1) of the Evidence Act 1990, Mufutau v. The State (1987) 1 NWLR (Pt. 152) 579, Philip Onogodo v. The State (1981) 5 S.C.5 at 21, Mhanu v. The State (1988) 3 NWLR (Pt.84) 615 at 626.
In the case in hand, the evidence of the cause of death is inconclusive. In the medical report Exhibit “L”, it was recorded by way of conclusion that the death of the deceased was natural. Contrary to that, P.W.2 Stated that death of the deceased was not natural, thereby creating a serious doubt which ought to have been resolved in favour of the appellant. As was stated by Aniagolu, J.S.C. in Adesujo Akinkunmi and 3 Ors v. The State (1987) 3 S.C. p. 152 at 168 (1987) 1 NWLR (Pt.52) 608, “It is better to err on the side of acquittal when facts presented in a case are inconclusive or leave one with a margin of doubt.”
I am not unmindful of the fact that medical evidence is not a sine qua non to establish cause of death. In the case of Bakuri v. The State (1965) NMLR 163, the Supreme Court said:-
“It was argued before the learned trial Judge that cause of death was not proved. We are in agreement with his view that in case of this nature where a man was attacked with a lethal weapon and died on the spot, it is hardly necessary to prove cause of death; it can be inferred that the wound inflicted caused death.”
And in the case of Frank Onyenankeya v. The State (1964) NMLR 34, Taylor J.S.C. said:-
“It is good law that medical evidence is not always essential though desirable to prove cause of death but the evidence must in any case be such as to show that the death of the deceased was caused by the act of the appellant.”
See also Kato Dan Adamu v. Kano Native Authority (1956) SCNLR 65, (1956) 1 F.S.C. 25, State v. Edohor (1975) 9-11 S.C. 69, Essien v. The State (1984) 3 S.C. 14 at 18, Emwenya v. A-G,. Bendel State (1993) 6 NWLR (Pt. 297) 29.
From the available evidence, I am of the view that the prosecution had failed to establish that it was the act of the appellant that caused the death of the deceased.
In the result, this appeal succeeds and is accordingly allowed. The judgment of Njiribeako J, dated 28/7/88 convicting the appellant of murder and sentencing him to death is hereby set aside and in substitution therefore, the appellant is hereby discharged and acquitted.
Other Citations: (1999)LCN/0533(CA)
