Medical Evidence Required To Establish Cause, Manner Of Death – Supreme Court

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 12TH DAY OF FEBRUARY, 2016

SC.234/2012

LN-e-LR/2016/13 (SC)

OTHER CITATIONS

(2016) LPELR-40029(SC)

BEFORE THEIR LORDSHIPS:

WALTER SAMUEL NKANU ONNOGHEN (JSC),

NWALI SYLVESTER NGWUTA (JSC),

MARY UKAEGO PETER ODILI (JSC),

OLUKAYODE ARIWOOLA (JSC),

MUSA DATTIJO MUHAMMAD (JSC),

BETWEEN

OBASANJO EGHAREVBA Appellant(s)

AND

THE STATE Respondent(s)

JUDGMENT

(DELIVERED BY NWALI SYLVESTER NGWUTA, JSC)

The appellant and one other person were tried at the High Court
of Justice of Edo State of Nigeria, Benin Judicial Division, in two
count information for conspiracy to murder punishable under Section
324, and murder punishable under Section 319, of the Criminal Code
Cap. 48, Vol II Laws of Bendel State of Nigeria, 1976 now
applicable to Edo State of Nigeria.

The prosecution’s case is that the appellant, his co-accused and
two other inmates of the prison went to work in the prison’s
garden. Each of them had a hoe. At his request, the appellant was
taken to a source of water close by to drink water. He was led by
the deceased Warden. Appellant hit the deceased in the head with
his hoe and the deceased fell down screaming. The prisoners, one of
whom was to testify at the trial as PW3, ran to the scene and
helped the wounded warden to the prison’s compound from where he,
the deceased, was taken to the University of Benin Teaching
Hospital where he died about three weeks later.

The incident took place on 19th May 2001. Meanwhile appellant
and his co-accused had escaped but were apprehended the night of
the same date by members of a vigilante group. They were handed
over to the police who charged them to court.

In the case of the appellant, the learned trial judge
held:

“In the result, arising from all the analysis, I hold that the
prosecution has proved the guilt of the 1st accused person beyond
reasonable doubt as required by law. In the circumstances, I find
the 1st accused person guilty of the murder of Lucky Ononike (m)
and I hereby convict him accordingly.”

Accordingly the appellant was sentenced to death by hanging.

Dissatisfied with the judgment, and sentence of death passed on
him, the appellant appealed to the Court of Appeal, Benin Division.
That court on 23rd April 2012, dismissed the appeal and affirmed
the judgment of the trial court.

Appellant further appealed to this court on two grounds
from which he distilled the two issues reproduced
below:

“1. Whether the Court of Appeal was right in affirming the
decision of the trial court holding that the prosecution did prove
the guilt of the appellant beyond reasonable doubt.

2. Whether the learned Justices of the Court of Appeal were
right in upholding the admission of the purported confessional
statement of the appellant (Exhibit A) by the lower court and
affirming the judgment and conviction of the appellant based on the
said purported confessional statement.”

I will determine the appeal on the two issues raised by the
appellant which were substantially adopted, but re-numbered, by the
respondent. The same issues were raised and canvassed to no avail
in the court below.

Ideally, in an appeal, issues are not formulated to coincide
with the number of grounds of appeal. See Nwudenyi & Ors v.
Aleke (1996) 4 NWLR (Pt.449) 349. It is better to raise an issue
from a combination of grounds of appeal. The principle which
governs the formulation of issues for determination is that a
number of grounds of appeal could, where appropriate, be formulated
into a single issue. See Labiyi v. Anretiola (1992) 10 SCNJ 1 at
P.2.

The two issues raised from the two grounds of appeal can
conveniently be argued as one. Be that as it may I will resolve the
issues as raised and canvassed by learned counsel for the
appellant.

Issue 1 queries the decision of the court below that the
prosecution proved its case beyond reasonable doubt. Now, what is
proof beyond reasonable doubt? The answer is provided in the case
of K. Gopal Redding v. State of AP AIR 1979 SC 387 wherein the
Indian Supreme Court held, inter alia:

“A reasonable doubt does not mean some light, airy,
insubstantial doubt that may flip through the minds of any of us
about almost anything at some time or other, it does not mean a
doubt begotten by sympathy out of reluctance to convict; it means a
real doubt, a doubt founded upon reasons.”

Before the court below learned counsel for the appellant
contended that PW2, the Medical Doctor who performed the post
mortem on the deceased said that the external wound sustained by
the deceased had completely healed as at the time the deceased
died. Their lordships of the court below had characterised the said
submission as “half-truth”.

In murder cases, medical evidence is required to establish the
cause of death and manner of death. The cause of death is medical
question while the manner of death determines whether or not the
injury which is the cause of death was or could have been
self-inflicted. In my view, the PW2 properly determined the cause
of death as the resultant effect of the head injury suffered by the
deceased even though the wound itself had healed at the time he
performed the post mortem on the body of the deceased.

The PW2 shied away from the second issue he was to determine –
the manner of death. He said: “I do not know if the injury in this
case was self-inflicted.” He did not have to know whether the
injury he described as from which the deceased died was, or was
not, self-inflicted. He was required to give an opinion based on
his training and experience as a pathologist whether the injury he
described could have been self-inflicted or not.

It is not his duty, however, to fix the appellant at the time
and scene of the crime, He did not give eye-witness account of the
incident. Those who commit violent crimes do not invite medical
doctors to witness their misdeeds so that he the doctor can fix
them at the scene of their crime. Learned counsel stated three
elements the prosecution must prove to secure conviction in a
murder charge:

(a) Death of the deceased; it is not in doubt that the body upon
which the PW2 performed post mortem examination was that of the
deceased, Lucky Ominike. This is clear from the totality of the
evidence and in the circumstance a conviction cannot be voided
because the person who identified the body to the doctor was not
called.

It has been held severally that where the totality of the
evidence of the prosecution shows consistently that the body on
which a doctor performed a post mortem examination was that of the
deceased, a separate witness on the issue of the deceased’s
identity, though desirable, is not a necessity, see Enemoh v. State
(1990) 4 NWLR (Pt.145) 459; Princewill v. State (1994) 6 NLR
(Pt.353) 703 at 713 G-H.

(b) That it was the act or omission of the accused that caused
the death of the deceased. The PW3 was the prosecution’s star
witness. He was serving a term of imprisonment at the said prison
facility with the appellant and his co- accused. The three of them
were taken to work in the garden by the deceased warden. He was at
the scene and heard the deceased screaming.

Appellant put identity of the PW3 in issue. If the PW3 was not
who he claimed to be, then the appellant who knew that fact had the
burden to prove his assertion by producing the real Friday Jatto or
by any other means. It is a matter peculiarly within his own
knowledge. See Section 140 of the Evidence Act, 2011.

He could have called Mrs Omoniyi he claimed he went to work for
with two elderly men and two boys. He could have called any of the
two elderly men or two boys to give evidence that he took them to
work for Mrs. Omoniyi. The evidence that could have established
that he went to work for Omoniyi with two elderly men and two boys
was available but the appellant deliberately withheld it. This is a
presumption that the evidence would have been fatal to his case if
he had produced it. See Section 167 (d) Evidence Act 2011. See also
Framo Nig Ltd v. Shaibu Daodu (1993) 3 NWLR (Pt.281) 372.

Every decision of a court is a finding of fact to which the
appropriate law is applied. In this case, the trial court found the
facts and applied the law and convicted the appellant. The court
below reviewed the case and found no reason to disturb the decision
of the trial court. Perhaps appellant’s counsel did not appreciate
the fact that he was dealing with a concurrent findings of the two
courts below.

In absence of a finding that the current finding of facts is
either perverse or bedevilled with error in substantive or
procedural law which if not corrected will lead to a miscarriage of
justice, this court will not interfere even if the appellant had
prayed the Court to do so. See Lokoyi & Anor v. Olojo (1983) 8
SC 61 at 68; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 23.

I accept the submission of the respondent that the case against
the appellant was proved beyond reasonable doubt; bearing in mind
that proof beyond reasonable doubt is not proof to mathematical
certainty. I resolve issue one against the appellant.

Issue 2 is on admissibility of Exhibit 2, the statement credited
to the appellant. When the learned prosecuting Counsel sought to
tender the statement learned counsel for the appellant said:

“The 1st accused says he did not make the statement sought to be
tendered in evidence. Voluntary is not an issue.”

Learned counsel for the appellant was right. The voluntariness
of Exhibit A is not an issue in the appeal since the appellant
denied having made it. The Trial Court did not have to engage in a
trial within trial. See Emeka v. State (2001) FWLR (Pt.66) 632
ratio 5. The trial court was right to have admitted Exhibit A in
evidence even though the appellant pleaded non est factum. See
Queen v. Nwango Igine (1960) 5 JSC 55.

At the end of the trial the Trial court considered Exhibit A in
the light of the prevailing circumstances and came to the
conclusion:

“In the instant case, from the facts of the admission of the 1st
accused person in Exhibit ‘A’ and the surrounding circumstances of
the whole case… I am satisfied that the 1st accused person made
Exhibit A…”

This is a finding of fact made by the trial court and endorsed
by the court below. Appellant did not even attempt to prove
perversity in the finding. I see no reason to disturb the finding
that the appellant made the confessional statement, Exhibit A, and
the said exhibit was rightly admitted in evidence by the trial
court. The court below rightly upheld the admission of Exhibit A. I
resolve the issue against the appellant.

Having resolved the two issues in this appeal against the
appellant, I hold that the appeal is devoid of merit and
accordingly it is hereby dismissed. I affirm the judgment of the
court below.

Appeal dismissed.

I noted earlier in the judgment that learned counsel for the
appellant referred to the learned Justice of the court below who
wrote the leading judgment in the third person pronoun.

This is unacceptable. It violates the ethics of the noble
profession. It is contemptuous.

On no account should a judicial officer be addressed or referred
by pronouns. To deter further occurrence of this lapse and those
who may imagine they can look down on/or talk down on the bench in
this country, I hereby order learned counsel for the appellant,
Emmanuel O. Achukwu, Esq to tender an unreserved apology, within 30
days from today, to the honourable justices who heard this appeal
in the court below through the Hon. President of the Court of
Appeal and copy the chief registrar of this court.

Representation

Emmanuel Achukwu (with him: B. C. Hezes and J. N. Okongwu),
for appellant

and

Oluwole Iyamu (SG/PS), Edo State (with him V. U. Adeleye (Mrs),
Assistant Director; R. Oaihimire (Mrs), SSC; I. Eribo (Mrs), SSC;
M. O. Efuaga (Miss) SSC), for respondent.