Ukwa Egbe Enewoh V. The State (1990)
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OLATAWURA, J.S.C.
The only issue raised in this appeal is whether there was proper identification of the body of the deceased to the doctor who performed the post mortem examination.
The appellant was charged at the High Court of Anambra State. Abakaliki Judicial Division, of the murder of his brother one Nworie Ukwuru Enewoh. The particulars were that he murdered him on or about 30th July, 1981 at Anyimechuku Alike Ikwo contrary to section 319(1) of the Criminal Code. Cap. 30. Laws of the former Eastern Nigeria applicable in Anambra State. The prosecution called 5 (five) witnesses. The appellant gave unsworn evidence from the dock and denied the charge.
The facts that led to the conviction are not in dispute. The deceased was the brother of the appellant. A dispute arose out of the use of a farmland. The appellant employed a woman to work for him on the farmland. The deceased was getting to the farm asked the woman to stop working thereon. The appellant did not take kindly to this. He then went home and collected a rod or iron oar which was later admitted in evidence as Exhibit C. He hit the deceased several times with the rod. The deceased shouted “Ukwa Egbe is killing me.” It was this shout that attracted the attention of the wife of the deceased (P.W.1) to the scene. She ran there and saw the accused heating the deceased with the rod. The appellant’s son (P. W.4) was there, but despite his plea with his father, the appellant continued hitting him with the rod. He hit him on the leg, stomach and hand. He was later carried to Abakaliki General Hospital where he died the following day in the hospital.
Both counsel addressed the court. After a meticulous review of the evidence of both the prosecution and the defence, and a consideration of the submission made. Offiah. J., found the appellant guilty as charged and sentenced him to death. Not satisfied with the judgment, the appellant appealed to Enugu Division of the Court of Appeal. The appeal was also dismissed and the conviction and sentence of death were affirmed. The appellant has now appealed to this court. “The only ground of appeal argued and which is covered by the only issue raised for determination read:-
“The learned Justices of the Court of Appeal erred in law in dismissing the appellant’s appeal and affirming the conviction and sentence of murder of the learned trial Judge, when the prosecution failed to lead any evidence to identify the body examined by the 3rd P.W., Dr. Chukwudi Egbuonu as that of Nworie Ukwuru Enewoh alleged killed by the appellant.
Particulars of Error
(a) The prosecution at the trial led no evidence to establish that Nworie Ukwuru Enewoh, alleged killed by the appellant, was known to the 3rd P.W. Dr. Eghuonu, during his lifetime.
(b) The prosecution at the trial called no evidence of identification of the body of the said Nworie Ukwuru Enewoh (deceased) to the said 3rd P.W. Dr. Egbuonu, who performed the post-mortem examination; Ote Enewoh who identified the said body to the Doctor having died before the trial.
(c) To warrant a conviction in a case of murder, the prosecution must call evidence in support of the identification of the body of the deceased to the Doctor who performed the post-mortem examination as that of the person alleged killed by the accused;
(d) The evidence of identification is vital and failure to call same is fatal to case of the prosecution:-
(i) The State v. Nicholas Uzuagwu & Ors. (1972) 2 . E.C.S.L.R. Part II Page 429;
(ii) Osarodion Okoro v. The State (1988) 5 N.W.L.R. (Part 94) page 255;
(iii) R. v. Laoye 6 W.A.C.A. 6.”
Briefs were filed and exchanged. In the appellant’s brief filed by Chief Debo Akande, S.A.N., the learned counsel for the appellant, learned counsel submitted that the fact “that evidence of identification of the body on which the autopsy was conducted was not available before the court constitutes a serious gap in the case of the prosecution to warrant a reversal of the Court of Appeal decision.” He cited the case of Osarodion Okoro v. The State (1988) 5 N.W.L.R. (Pt.94) 255 at 267. Learned counsel then tried to distinguish the two cases relied upon by the Court of Appeal Okafor v. The State (1965) N.M.L.R.20 at 22 and Elijah Ukoh v. The State (1972)5 S.C.135 at 141.
In his oral submission before us, Chief Akande agreed that lack of identification will not necessarily lead to acquittal in that where the body was not identified but there are pieces of evidence that can link the body with the body of the alleged deceased, that will satisfy the law that requires identification of the body. Learned counsel referred to last line of page 89 and lines 1-7 of page 90 where Uwaifo, J.C.A., said:
“I will therefore say that P.W.3 was not sufficiently led in evidence (sic) show that he was present when Enewoh identified his father’s corpse to the doctor particularly having regard to the active role he played and the concern he showed throughout in regard to this incident affecting his father, nor was he discredited in cross-examination to show he was not present.”
It was the further submission of Chief Akande that whoever was present when the body was identified ought to have been called. In his own reply after adopting his brief Chief Okolo the learned Chief legal officer submitted that there was ample evidence which clearly identified the body on which the post mortem was performed. He referred to the evidence of P. W.1 and also page 30 lines 5-10 of the record to show that the deceased died and his body was identified to the doctor and that the combined effect of the evidence of P.W.1 and P.W.3 shows clearly that the post mortem was performed on the deceased. From the submissions and the briefs, one thing is not in doubt: the death of Nworie Ukwuru Enewoh.
It is fair to say that Chief Akande, S.A.N., did not doubt that P.W.2 performed an autopsy, his question was: On whose body This will lead us to the evidence of the doctor. It cannot be doubted and infact there was abundant evidence also that Nworie Ukwuru Enewoh died. P. W.3 Dr. Chukwudi Egbuonu who performed the post mortem on the body of the deceased Nworie Ukwuru Enewoh said:
‘”I am a registered medical practitioner attached to the Abakaliki General Hospital. On 4/8/81, I performed a post-mortem examination on the body of Nworie Ukwuru Enewoh. The probable date of death was 1/8/81. The body was identified by one late Enewoh, a junior brother to the deceased.”
Chief Akande in the course of his submissions argued that since the Doctor did not say “The body was identified to me by late Enewoh,” it will be difficult to say that the post mortem examination was performed on the body of Nworie Ukwuru Enewoh. It is therefore necessary to look for other evidence that the doctor P.W.3 performed the post mortem on the deceased’s body. P.W.1 the wife to the deceased after narrating how the deceased was beaten by the accused and the shout of the deceased “Ukwa Egbe is killing me” reported the matter to the police and the deceased was taken to the hospital. Which hospital The answer can be found in the evidence of P. W.5 Corporal David Nwafor. He said:
“On 30/7/81 a case of assault was reported by the accused’s junior brother in respect of an assault on the deceased……………I saw the deceased. He was lying down in a pool of blood. I conveyed the deceased to the Abakaliki General Hospital (i.e. the hospital where P.W.3 was the doctor) I went back to the hospital a day after and observed he had died. The deceased was one Nworie Ukwuru Enewoh. There was a post mortem examination.” (italics mine).
In my view, it has been established beyond doubt that there was an autopsy by P. W.3 on the body of the deceased. Where the totality of the evidence of the prosecution showed unmistakably that the body on whom a doctor performed a post mortem examination was that of the deceased a separate witness though desirable is not a necessity. The position would have been different if the learned trial Judge did not accept the evidence of P.W.1, P.W.3 and P.W.5.
There is a clear difference between a situation where the witness who identified the body to the doctor who performed the autopsy was not called and a situation where the witness who identified the body during the autopsy died before the trial. In the former case, a doubt is cast on the case of the prosecution as to the identification of the person allegedly murdered. In the latter, i.e. when the person who had earlier on identified the body to the doctor died before the trial, the court must look for pieces of evidence which will show conclusively that the doctor performed the autopsy on the body of the person allegedly murdered. I bear in mind that the learned trial Judge when considering this issue in his judgment said:
“From the entire evidence it does not appear the issue was contested as both parties were not in doubt as to the identity of the subject matter of the charge; see Ukoh v. The State (1972) 5 S.C. 135 at 141.”
This however does not debar the appellant’s counsel from raising it on appeal more so where the identification of the body is in issue. To prove that the deceased died and that it was in respect of his body that an autopsy was performed appears to me a legal requirement Osarodion Okoro v. The State (1988) 5 N.W.L.R. (Pt.94) 255; R. v. Laoye & Anor. 6 W.A.C.A. 6; Okafor v. The State (1965) N.M.L. R. 20, Elijah Ukoh v. The State (1972) 5 S.C. 135
What Ukoh’s case (supra) decided was that both the prosecution and the accused agreed that autopsy was performed on the corpse.
The real purpose of identification is to ensure that there is no miscarriage of justice. Unless the death of the person in respect of whom the accused was charged is proved beyond reasonable doubt, the accused may be convicted for the murder of a person yet alive. This should be avoided. In this case on appeal there was sufficient and uncontroverted evidence that Nworie Ukwuru Enewoh died. And the issue of the identification was seriously canvassed before the lower court. In coming to a decision on this point, Uwaifo, J.C.A., before reviewing the above authorities said.
“It is in order to eliminate any possible mistake of an autopsy being performed on a corpse other than that of the deceased in respect of whom an accused is charged with causing his or her death that evidence of the relevant corpse is needed.”
I agree. It is not the law that only direct evidence of identification will satisfy this requirement. Circumstantial evidence which leads to one conclusion that the autopsy was performed on the body of the deceased is admissible. It must however be cogent and unequivocal. Uwaifo, J.C.A. went further and said:
“It could be evidence of some peculiarities known about the deceased’s physical features or found or associated with his or her body form which identity could hardly be mistaken. It could also be that from the nature of the available evidence there is reliable nexus of some sort between the injuries received by the deceased as given by those who saw them when or after he received them and those described by the doctor on performing the autopsy.”
Dr. Chuwudi Egbonu (P.W.3) who performed the post-mortem said:
“My findings were as follows: The body was that of an adult male aged about 55 years and about 1.6 metre tall. Examination revealed a compound fracture of the distal third, that is the lower 1/3 of the right let. The injury is consistent with impact with a blunt object……..
This is consistent with a wound that can he caused by a sharp object (not knife). It could be a metal or rough stick……..It was an impact with a blunt object that gave rise to the traumatic and haemorrhagic stuck. The blunt object could be a heavy stick or a metal… The metal could be a rod, any cylindrical rod that has some weight. It need not be cylindrical.”
The question then is: was there any evidence from the prosecution witnesses that supplied details given by the doctor (P.W.3). The answer is in the positive. See the evidence of P.W.1 (the wife of the deceased) who said:
“When we got there, the accused saw us and ran away with his son. I saw the accused when he was beating the deceased. The accused had a rod. He left the rod there when he ran away. I saw the rod.”
The evidence of the appellant’s son (P.W.4) is to the same effect:
“My father ran home and collected a rod. As the deceased was going home, the accused hit him with the rod. I was crying when he was hitting him with rod. I pleaded with the accused not to him the rod. Accused ignored my plea and hit him…”
P.W.5 – Corporal David Nwafor the Investigating Police Officer said inter alia:
“I went to the scene of incident at Anyim Chukwu. I saw the deceased. He was lying down in a pool of blood. I conveyed the deceased to the Abakaliki General Hospital. I went back to the hospital. I went back to the hospital a day after and observed he had died. The deceased was one Nworie Ukwura Enewoh. There was a post mortem examination. During the course of my investigation I collected an iron bar from the scene, basin, hoe and plate from the scene……
Accused admitted being the owner of the iron bar.”
As pointed out earlier the sum total of the evidence of P.W1, P.W.3, P.W.4 and P.W.5 pointed unequivocally to the fact that the post mortem was performed on the body of Nworie Ukwuru Enewoh.
Having disposed of the only ground of appeal, the appeal will be, and is hereby dismissed. The conviction and sentence passed by the High Court are hereby affirmed.
OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Olatawura, J.S.C. I agree with him that the appeal fails and must be dismissed as his opinions on all the issues for determination accord with mine.
This is a murder appeal, the appellant was convicted by the High Court, Abakaliki, of the murder of Nworie Ukwuru Enewoh and sentenced to death. His appeal to the Court of Appeal was unsuccessful and has now appealed to this court against the conviction and sentence of death.
The only issue raised for determination is as to the identity of the body of which P.W.3., Dr. Chukwudi Egbuonu performed the autopsy or post mortem examination. Was it the body of Nworie Ukwuru Enewoh or the corpse of someone else The issue arose from the fact that Ote Enewoh who P.W.3 testified identified the body to him as that of his brother, died before the trial. The fact of the case and the findings of the court below on the issue has been set out in detail in the judgment of my learned brother, Olatawura, J.S.C., and I shall not repeat them here. There is established before the High Court the death of Nworie Ukwuru Enewoh as a result of the assault on him by the appellant. There is evidence that one Ote Enewoh was a brother of the deceased and that he died before the trial of the appellant. there is evidence accepted by the court that he identified the dead body of Nworie Ukwuru Enewoh to the P.W.3 for autopsy. The only evidence not available is the evidence of Ote Enewoh to the effect that he identified the body Nworie Ukwuru Enewoh to P.W.3 before he carried out the post mortem examination on the body.
Chief Debo Akande. S.A.N., contended that the absence of this piece of evidence is fatal to the conviction as there is a doubt as to the identity of the body examined by the doctor and consequently, the probative value of P.W.3’s evidence seriously affected. The effect of the absence of direct oral evidence of Ote Enewoh can be nullified by available circumstantial evidence of high probative value.
There is available evidence of the findings of P. W.3 or the result of his post mortem examination and these findings tally or tick up with the evidence of injuries inflicted on the body by the appellant. The evidence of P.W.1, P.W.2,. P.W.4 and P.W.5 all lead to one conclusion that the body examined by P. W.3 was the body of the deceased.
There is no doubt that the absence of evidence of identification of the corpse examined circumstantial or direct is fatal where medical evidence of the cause of death is vital. See Osarodion Okoro v. The State (l9SS) 5 N. W.L. R. (Pt.94) 255; R. v. Laoye 6 W.A.C.A. 6
But where there is circumstantial evidence of identification of the corpse which point irresistibly to the body of the deceased, Nworie Ukwuru Enewoh, as pointed out above, the conviction must stand despite the non availability of direct oral evidence of the person who identified the corpse to the doctor.
There is abundant evidence adduced before the High Court to justify the conviction.
The appeal fails and is hereby dismissed.
SC.227/1989
