In The Supreme Court of Nigeria
On Friday , 8th day of February 1980
SC 24/1978
Between
Valentine Adie ....... Appellant
And
The State ....... Respondent
Judgement of the Court
Delivered by
Muhammadu Lawal Uwais
The appellant was convicted at the High Court, Ogoja of the murder of Cyril Bishung and was sentenced to death. He appealed to the Federal Court of Appeal against conviction and the appeal was dismissed. He has now appealed to this Court.
The facts before the trial court, which were not in dispute, may be summarised as follows. On 16th December, 1975 both the appellant and the deceased took part in a football match after which there was hot argument between them. The appellant returned to his room at Front Line Hotel, Obudu. Not long afterwards the deceased went to the hotel and met the appellant in the room. A fight ensued between them in the room. The fight, according to the appellant, lasted about ten minutes. The time was about 7 p.m. P.W.2, James Akpagu was an eyewitness to the fight. He said in evidence that he had gone to the "generator room" of the hotel to switch on the hotel electric plant when he heard some noise coming from the appellant's room. He went to the room and found the deceased and appellant fighting. He attempted separating the fight but in vain. One Godwin Uka came to the room and with his assistance the fight was stopped and the deceased was pushed out of the room. The appellant then got hold of a stick to chase the deceased. P.W.2 tried to stop the appellant, but the appellant shouted at him saying "let me alone to pursue him". The appellant then went after the deceased P.W.2 came out of the Front Line Hotel but could not see the appellant. He, on information received, ran to Port Harcourt Street where he found the deceased lying on the ground. The deceased called on him for help and asked the witness to get his (deceased's) father to the scene. Meanwhile one Justina Azikpu, P.W.5, who had seen the deceased on the ground requested Timothy Agida, P.W.4, to take the deceased to the hospital. P.W.4 picked the deceased on his motor cycle and took him to the police station instead. The police then took the deceased to the Sacred Heart Hospital, Obudu, where the latter was admitted by a doctor for observation.
The doctor testified as P .W.1 and said:
On 16/12/75 I admitted at about 8.30 p.m. one Cyril Bishung into hospital. Cyril had a small laceration on the bridge of the nose, and another laceration on the right eyebrow. I observed that the right eyelid was grossly swollen. His general condition was good at the time of admission. He was admitted for observation. On 17/12/75 his general condition was satisfactory. On 18/12/75 he had transcient episodes of restlessness and was semi-comatose at times. At 9.40 p.m. of 18/12/75 he died. I next performed a post-mortem examination on 19/12/75 at 8 a.m. I found upon dissection of the skull linear slightly depressed fracture of the frontal bone, just above the nose and another depressed fracture on the right eye brow. There was communited fracture of the right orbital plate, with displacement of splinter fragment, also observed extradural haemorrhage of the frontal orbital bone. In my opinion cause of death was the above-stated injuries on the head.
In his defence, the appellant testified and said that when the deceased tried to run out of his (appellant's) room in the Front Line Hotel, he (deceased) knocked his face against the frame of the door. This evidence was earlier mentioned in the appellant's statement to police made under caution, which was put in evidence by the prosecution as Exhibit 1 and was subsequently adopted by the appellant in the course of his evidence-in-chief. The relevant portion of Exhibit are ads:
During the struggle, when he got up, and was trying to run out of the house he hit his face on the frame of my door and sustained injury.
The only point taken before us by learned counsel for the appellant was that in view of the inconsistency in the evidence of the doctor that performed the autopsy (P.W.1) there was no sufficient circumstantial evidence which could be said to have irresistibly led to the inference by the learned trial judge that it was the appellant that caused the death of the deceased. In support of this contention learned counsel for the appellant referred us to the evidence of the doctor given under cross-examination, where she said:
All the head injuries are due to heavy direct force; These ones are consistent with injuries caused if a person ran against a heavy object (italics mine).
and also the doctor's written report which was tendered for identification by her and later put in evidence by PC Noel Ikpo, P .W. 8, as Exhibit 3. In the report the doctor expressed the following opinion:
I certify the cause of death in my opinion to be due to above head injury due to a heavy blow (Italics mine).
In his judgment the learned trial judge found as follows:
The 1st accused (now appellant) has not also disputed the fact that the deceased had an injury on his head, but explains that the injury was caused when the deceased hit his face on the wooden frame of his door. I do not accept this explanation. The doctor said there were two lacerations on the deceased's face, one on the bridge of the nose and the other on the brow of the right eye. Under cross-examination she said the two wounds were due to heavy direct force; in Exhibit 3, her report on the autopsy, she certified that the cause of death was the head injury, (meaning I take it, the two lacerations) due, as she put it, 'to a heavy blow.' No accidentally self-inflicted injury could, in the circumstances in which the 1st accused said the fight took p lace, result in so grave an injury as those in issue in this case
..I therefore find as a fact that it was the 1st accused who inflicted the injury or injuries on the nose and right eyebrow of the deceased, which injuries occasioned the deceased's death on the 18th of December, 1975.
The Federal Court of Appeal which considered the issue of the sufficiency of the circumstantial evidence observed
In the present case as we have already pointed out, the evidence-in-chief of P.W.2 covered these aspects of the inadmissible evidence now complained of by learned counsel for the appellant and it is our view that in no way was the appellant ever prejudiced. This view also applies to the admission of Exhibit 3 the medical certificate of P.W.1. There was no need to have admitted that exhibit in view of the evidence of P.W. 1 herself. We agree with the submission of learned counsel that the only use to which the report might have been made was for the doctor to have been allowed to refresh her memory with it 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 the doctor's evidence-in-chief. See David Ifenado v. The State (1967) N.M.L.R. 200 at page 203 (see also Owanso Agbeyin v. The State 1967 N.M.L.R. 129...
In spite of the learned trial judges reference to Exhibit 3 from the evidence-in-chief of P.W. 1, we are satisfied that it was proper for him to draw the irresistible inference that the fractures as described could not have been caused by the deceased hitting his face on a wooden door-frame."
It is significant to observe that the medical report was not, strictly speaking, put in evidence by the doctor, as it was admitted during her testimony for identification only. P.W.8 was the witness who tendered the report when it was admitted as Exhibit 3. So that the present case is distinguishable from the cases of David Ifenado and Owanso Agbeyin (supra) where the medical reports were put in evidence as exhibits proper in the course of the evidence-in-cliief of the medical officers who testified in those cases. In the present case it was not necessary for P.W.8 to tender the medical report since the doctor testified by herself; and furthermore in view of the decisions of this Court in the cases of David Ifenado and Owanso Agbeyin, the effort by the prosecution to put in the report as an exhibit for identification only was an exercise in futility that ought not to have been embarked upon.
Be that as it may, since the report was put in evidence by P.W.8 and not the doctor, and it was not challenged as superfluous when so tendered, it was open to the learned trial judge to rely on its contents as he did.
Now to return to the submissions of learned counsel for the appellant. In Exhibit 3, as already shown, the doctor stated that the injuries suffered by the deceased were caused by a heavy blow. She made no mention of the cause of the injuries in her evidence-in-chief, except under cross-examination when she said that the injuries were consistent with those caused when a person runs against a heavy object. The divergence of the opinion expressed by the doctor is significant in the light of the case for the prosecution and that for the defence. If the injuries were caused by a heavy blow, that is consistent with the prosecution's case, but if on the other hand they correspond with injuries caused by running against a heavy object, that would be in support of the appellant's defence that the deceased collided with the frame of the door to the appellant's room.
The case for the prosecution rests on circumstantial evidence and as Lord Hewart, Lord Chief Justice of England observed in P. L. Taylor & Ors. v. R. 21 Cr. App. R20 at p.21:
It has been said that the evidence against the applicants is circumstantial: so it is but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics.
The prosecution omitted to adduce any evidence about the size and shape of the stick carried by the appellant when he pursued the deceased. Consequently, it cannot be said with any degree of certainty that the stick was capable of causing the injuries sustained by the deceased, if it were to be held, as indeed the learned trial judge did hold and the Federal Court of Appeal affirmed, that the appellant was responsible for causing the death of the deceased by striking the latter with the stick.
In any case with the ambiguity in the testimony of the doctor unresolved it is difficult for me to see how the case for the prosecution, which is based on circumstantial evidence, could be said to have been so conclusive as to irresistibly lead to the guilt of the appellant.
In conclusion the appeal succeeds and I will allow it. The decision of the Federal Court of Appeal is set aside and the conviction and sentence imposed by the trial High Court are quashed. The appellant is acquitted and discharged.
Judgment delivered by
Sowemimo J.S.C.(Presiding)
I agree with the judgment of my learned brother Uwais on the facts and on the application of the law to those facts. It would appear that both courts of trial and the Federal Court of Appeal in Enugu did not grasp correctly that in dealing with circumstantial evidence they must appreciate that the principle governing such a case is that from the facts accepted or found the only irresistible conclusion should be that an accused person and no other inflicted the injuries and thereby caused the death of the deceased.
There is also the novel proposition that when a witness gives expert evidence in chief, the report he issued to the police must also be tendered. This in my view is contrary to the provisions of the law of evidence of the former Eastern Nigeria applicable in the Cross River State. The D .D P P. said that the procedure he adopted was in conformity with an Edict of the Cross River State but was unable to cite it as he had no copy, and in fact does not know the number of the Gazette notice or the date. He was speaking from memory. It is not for this court to embark on a research for him. My learned brother Uwais has taken the trouble to make the research but did not come across such an Edict. I should have thought that the Ministry of Justice in the Cross River State especially the D.D.P.P. for that matter should not have treated the Supreme Court in such a manner. I agree that the appeal should be allowed not only because the doctor's evidence in court contradicts her report as to the probable cause of the injuries which led to the death of the deceased, but, also, there was no other evidence to lead to the irresistible conclusions that the appellant caused the injuries that led to the death of the deceased. The appeal is allowed and the conviction and sentence set aside. It is ordered that the appellant is discharged and acquitted.
Judgment delivered by
Idigbe J.S.C.
I have had the opportunity of reading in draft the judgment just delivered by my learned brother My Lord, Uwais J.S.C. and I agree with him that this appeal should succeed, but I would like to add a few words on the important subject of circumstantial evidence which is the principal point raised in the appeal. My Lords, the background to this case and all the relevant facts have been fully recounted in the judgment of the trial court (Esin J.), that of Douglas J. C.A. (as he then was) delivered the unanimous decision of the Federal Court of Appeal holden at Enugu (hereinafter referred to simply as "the Court of Appeal") and finally in the judgment just delivered by my learned brother, Uwais J.S. C. I think I need not repeat them save only to the extent that it may be necessary to recall certain aspects of the facts in addressing myself to what I consider the major issues which confront us and on which only I seek by this judgment to add a footnote to the leading judgment just read. I have considered it relevant to make this addition because we disagree with the considered and unanimous judgment of the Court of Appeal on a rather difficult, if not elusive, aspect of the criminal law in general and the law of evidence, in particular, which is the subject of conviction for an offence based solely upon circumstantial evidence.
The learned trial Judge has found, and the Court of Appeal, in my view, quite rightly agrees with him that there is no direct or "eye-witness" evidence as to how the deceased received the injuries which caused his death. Both the trial court and the Court of Appeal, however, appear to attach undue, if not erroneous, weight to the evidence of James Akpagu (P.W.2); both courts, in my respectful view, equally made erroneous and improper, if not "illegal", use of Exhibit 3 [the medical report issued by Dr. Pia Parlato (P.W.1)] which document was, in the opinion of the Court of Appeal, "improperly admitted in evidence."
That exhibit (i.e. Exhibit 3), be it noted, was put in evidence through Noel Ikpo (P.W.8) when he testified in chief, and NOT by the doctor (P.W.1) who was never asked any questions on the patent inconsistency between the opinion she expressed in her testimony under cross-examination and that given in the report (Exhibit 3) as to the manner the injuries she observed on the deceased had been received or inflicted.
Under cross-examination Dr. Parlato said:
All the head injuries are due to a heavy
direct force. These ones are consistent with injuries caused if a person ran against a heavy object. (Emphasis by me)
In her report (Exhibit 3), however, Dr. Parlato stated:
I certify the cause of death in my opinion to be due to above head (sic) injury due to a heavy blow. (Italics supplied by me)
Now, it is apparent from the foregoing underlined passages in the testimony and medical report (Exhibit 3) of Dr. Parlato that the deceased could have sustained the injuries which caused his death either (1) by "running his head or face against a heavy object" or (2) as a result of "a heavy blow"; but while theory (1) could be consistent with the evidence in the proceedings that the deceased hit (or butted) his face (or frontal region of the head) against the frame of the door of the room while trying to escape from that room, theory (2) is not only
inconsistent with that evidence but could also be consistent with the deceased having been
struck "a heavy blow" on the head with an object (which evidence was never given by any witness in these proceedings). The appellant in his evidence said that the deceased butted the frontal region of his face against the frame of the door of the room wherein they were engaged in a fight while trying to escape from the combat.
It is true that the learned trial Judge disbelieved this evidence of the appellant but a close examination of the learned trial Judge's observations on this aspect of the case shows, quite clearly, that this explanation as to what happened between him and the deceased during the combat in his room was disbelieved not only out-of-hand but also as a result of the learned trial Judge's wrongful admission and application of the opinion of Dr. Parlato in Exhibit 3 (earlier on referred to by me) as to the manner in which the deceased received the injuries which caused his death. I pause to advert to the relevant aspect of the judgment of the learned trial Judge; and it reads:
The 1st accused has not disputed the fact that the deceased had an injury on his head, but explains that the injury was caused when the deceased hit his face on the wooden frame of the door. I do not accept this explanation. The doctor said there were two lacerations on the deceased's face, one on the bridge of the nose, and the other on the brow of the eye. Under cross-examination she said the two wounds were due to a heavy direct force; in Exhibit 3, her report on the autopsy, she certified the cause of death was the head injury (meaning, I take it, the two lacerations), due as she put it 'to a heavy blow'. No accidentally self-inflicted injury, could in the circumstances in which the 1st accused said the fight took place, result in so grave an injury as those in issue in this case... (Emphasis by me).
I pause, once again, to observe that it is clear that the learned trial Judge erroneously entertained the impression that on the evidence of the appellant it is impossible to imagine that the injuries on the deceased could be "self-inflicted". This impression must, in view of the evidence of Dr. Parlato that the injuries were
consistent with the deceased having ran
"against a heavy object", be erroneous. It is clear that in the circumstances, the learned trial Judge failed to take sufficiently into consideration that aspect of the evidence, which tells in favour of the story of the appellant, and in the circumstances his assessment of the evidence of the appellant, must be considered inadequate.
Let us now examine the evidence of James Akpagu (P.W.2) on which the learned trial Judge convicted the appellant; it was to this effect: "when on 16/12/75 about 7 p.m. he was about to enter the room where the electrical generating plant was stored in the Front Line Hotel at Obudu, he was attracted by the noise from the appellant's room and upon entering found the deceased and the appellant engaged in a combat. With the help of a third party (i.e. 3rd accused in these proceedings who was discharged by the trial court for want of evidence) he successfully separated the appellant from the deceased whom they later pushed out of the room. Appellant took a stick and pursued the deceased. There is no evidence as to the size or length of this "stick". Witness tried unsuccessfully to stop the appellant in his chase of the deceased. When eventually witness came out of the room, he was informed by some members of the public that appellant had followed the deceased in the direction of Port Harcourt Road (sometimes referred to in these proceedings as Port Harcourt Street) at Obudu. Later he found the deceased lying on the ground at a spot along Port Harcourt Road Obudu. Such, in a nutshell is the evidence, apart from the conflicting opinion of Dr. Parlato, on which the trial court convicted the appellant.
Once again, I pause to observe that (a) there is no evidence of the size of the stick picked up by the appellant; and (b) there is no evidence 5 to
how close the pursuit of the deceased by the appellant was, nor (c) is there any evidence as to the distance between the Front Line Hotel and the spot where the deceased was later found lying on the ground. There is, however, evidence from Noel Ikpo (P.W.8) that Port Harcourt Road at Obudu is not only situated opposite the market" but also "a busy thoroughfare at all times". There is also the evidence of P.W.8 (the police officer who investigated in detail the complaint which led to those proceedings) that he "never came across any witness who saw the 1st accused i.e. appellant) with a stick along Port Harcourt Street on 16/12/75 at 6:40 p.m.
The resultant position, therefore: is that save for the evidence of James Akpagu (P.W.2) which amounts only to this: that the appellant having fought with the deceased was seen to pick up a stick- the size of which is unknown to the trial court - and followed the direction of Port Harcourt Road (where the deceased was later found lying on the ground) in apparent pursuit of the deceased. No one testified that he saw the deceased run away from the Front Line Hotel and along Port Harcourt Road up to the point where he was obliged to lie on the ground. All we know from the totality of the evidence before the court is that the deceased was seen to leave the room of the appellant at the Front Line Hotel but was next found lying on the ground at Port Harcourt Road, Ogoja. Appellant was seen to pick up a stick near or within his room at the hotel in apparent pursuit of the deceased as the latter left the hotel room;
P.W.2 James Akpagu (whose evidence on this point was, really, hearsay) was told by "some children who were selling cigarettes" just outside the hotel that they saw the appellant
"running towards Port Harcourt Street".
The learned trial Judge considered that he had enough evidence in the circumstances set out above to come to the conclusion (to use his own words) "that it was the 1st accused (i.e. the appellant) who inflicted the injury or injuries on the nose and right eyebrow of the deceased which injuries occasioned (sic) the death of the deceased on the 18th December, 1975"; he then sentenced the appellant to death. The Court of Appeal after a review of the case of Stephen Ukorah v. The State (1977) 4S. C. 167 to which they were referred came to the conclusion (again to use their own language) that the facts of that case (i.e. Ukorah) "are quite different from the circumstances of the present," and
adopting the hearsay evidence of the children who sold cigarettes outside the hotel, supported the erroneous findings of the trial court that the appellant in fact pursued the deceased, holding a stick, as he did, along Port Harcourt Road until he found him and struck him down. The Court of Appeal then came to the conclusion (in manifest contradiction of Dr. Parlato's testimony) that, in spite of the learned trial Judge's reference to Exhibit 3 (which they earlier on held to have been wrongly admitted in evidence), they were satisfied that it was proper for the trial court to "draw the irresistible
inference that the fractures as described could not have been caused by the deceased hitting his face on the wooden door frame."
My Lords, I am persuaded to the view that the learned Judges of the Court of Appeal were manifestly carried away by the hearsay evidence
of the cigarette sellers outside the hotel and like the trial Judge, also by their Patent reluctance, if not failure, to apply to the facts in this case the testimony (under cross-examination) of Dr. Parlato as to the manner the injuries on the deceased could have been received together with the wrong application by them of the principles of law relating to circumstantial evidence as stated by this court in Stephen Ukorah v. The State (Supra at p.176),
patently misdirected themselves in law and your Lordships, in the circumstances must depart from their findings.
As was stated in a passage in Emperor vs. Browning 39 I.C. 322 cited in Wills on Circumstantial Evidence; Seventh Edition (1936) at p.324 [approved by this court in Ukorah (Supra)]:
In a case where there is no direct evidence against the prisoner but only the kind of evidence that is called circumstantial, you have a two-fold task; you must first make up your minds as to what portions of the circumstantial evidence have been established, and then when you have got that quite clear you must ask yourselves, is this sufficient proof? It is not sufficient to say (as it seems to me, with very great respect, both the Court of Appeal and the trial court have done in these proceedings) 'if the accused is not the murderer, I know of no one else who is. There is some evidence against him, and none against anyone else. Therefore, I will find him guilty. Such line of reasoning as this is (on the law applicable to circumstantial evidence manifestly) unsound . . . (Italics and brackets supplied by me).
As we indicated in Ukorah (Supra) there is great need for a trial court to tread cautiously in the application of circumstantial evidence for the conviction of an accused for any offence with which he is charged. The Romans - we pointed out, with approval, in Ukorah (Supra at p .177) - had a maxim that it is better for a guilty person to go unpunished than for an innocent one to be condemned: and Sir Edward Seymour speaking on a Bill of Attainder in 1696 laid greater emphasis on this maxim when he stated that he would rather "that ten guilty persons should escape than one innocent should suffer." That also was our view in Ukorah (Supra). In my judgment, the decisions of both the trial court and the Court of Appeal in these proceedings are erroneous, and I agree with my learned brother, My Lord, Uwais J.S.C., that this appeal be allowed. Accordingly, I concur in the order proposed by My Lord, Sowemimo J.S.C. The appellant is hereby discharge and acquitted.
Judgment delivered by
Obaseki J.S.C.
I have had the pleasure and the privilege of reading the judgments of Sowemimo, J.S.C., Idigbe, J.S.C. and Uwais, J.S.C. delivered a short while ago and I agree entirely with their opinions on the question raised before us on the appeal.
The short point in this appeal, which is against conviction for murder, relates to the discharge by the prosecution of the burden of proof to entitle it to a conviction against the appellant.
The appellant was tried and convicted of the murder of Cyril Bishung by the Ogoja High Court (Esin, J.) on the 9th of June, 1977. His appeal to the Federal Court of Appeal (Douglas J.C.A. delivering the judgment) was unsuccessful and the conviction was affirmed. This is a further appeal the main ground being that:
The learned Appeal Court Judges were wrong to have upheld the judgment of the lower Court to find the appellant guilty of murder on the mere circumstantial evidence not cogent and compelling to warrant a conviction for murder in the circumstances.
The facts which have been fully set out in the judgment of my learned brother Uwais, J.S.C. will not be repeated herein save briefly as follows that there was a fight between the appellant and the deceased in the appellant's room at Front Line Hotel, Obudu at about 7.00 p.m. on the 16th day of June, 1976. The struggle in the room attracted James Akpagu (P.W.2) and with the help of Godwin Uka (who was earlier on charged along with the appellant but discharged and acquitted at the trial) separated the two combatants and pushed the deceased out ofthe room. The appellant then armed himself with a stick and as he attempted to pursue the deceased, he was restrained by P.W.2. He struggled to free himself and in the course of the struggle, he shouted at P.W.2 "let me alone to pursue him". He broke loose from the arms of P.W.2 and left ostensibly in pursuit of the deceased two minutes after the deceased ran out. It was dark, P.W.2 decided to follow. When he did follow and came out of the hotel P.W.2 did not know the direction the appellant went but some children selling cigarettes, following his enquiry from them, told him "Port Harcourt Street direction." P.W.2 then ran to Port Harcourt Street, Obudu and there saw the deceased alone lying down with an injury - a wound on his forehead asking for help. The deceased did not tell him the person who attacked him but asked him to get his father.
Under cross-examination, part of P.W.2's testimony reads:
"At the time the deceased ran out of the house, I was engaged in trying to restrain the first accused. I did not know what happened to the deceased at the door" I do not know whether the injury I saw on the deceased head was caused by his knocking his head against a door. " (Emphasis mine)
These answers are significant because the appellant in his testimony in court and indeed also in his statement made to the police on the same day as the incident alleged that during the struggle in his room when the deceased tried to run out of the house, he hit his face against the frame of my room door." He admitted that he tried to pursue the deceased but was stopped by P.W.2. I wish to observe that in his evidence-in-chief P.W.2 gave the impression that they pushed the deceased out of the room but this evidence under cross-examination gives the different impression that the deceased ran out of the house. what is surprising is that P.W.2 did not endeavour to give the deceased first aid or rush him to the police but left him in agony to procure the attention of his father.
Subsequently, Timothy Agida (P.W.4) at the request of Justina Azikpu (P.W.5) (both of whom met the deceased in agony on the road after P.W.2 had rushed to the house of the father of the deceased with information about the condition and request of the deceased) conveyed the deceased to the police station where the deceased found the appellant lodging a complaint of malicious damage. The police recorded the complaint of the deceased and took him to hospital for treatment. Dr. Pia Parlato saw him and admitted him for observation. This was in the night of 16/12/75. On examination before admission, Dr. Pia Parlato P.W. 1 observed the following injuries on the deceased -
(1) a small laceration on the bridge of the nose;
(2) another laceration on the right eyebrow;
(3) a grossly swollen right eyelid.
The evidence of P.W. 1 shows that the deceased's general condition was allegedly good at the time of admission and he was admitted for observation" (italics mine).
The evidence revealed further that on 17/12/75, his general condition was satisfactory, then on the 18/12/75 it took surprisingly serious turn for the worst. He had transient episodes of restlessness and was semi-comatose at times and he died at about 9:40p.m.
On performing the autopsy on the 19/12/75 at 8.00 a.m. P.W.1 found, upon dissection of the skull -
(1) linear slightly depressed fracture of the frontal bone just above the nose
(2) and another depressed fracture on the right eyebrow
(3) there was comminuted fracture of the right orbital plate with displacement of splinter fragment
(4) also observed extradural haemorrhage on the frontal orbital bone.
The doctor expressed the opinion that death was due to the above injuries. It was only under cross-examination that she gave the possible causes of those injuries. She ascribed them to a heavy direct force. This was expressedly stated in her evidence under cross-examination which reads:
All the head injuries are due to heavy direct force. These are consistent with injuries caused if a person ran against a heavy object. (italics mine)
The learned trial judge after a detailed analysis of the evidence before him correctly stated the task (issue) before him when he said:
What I have to determine is whether these injuries were inflicted by the 1st accused.
He also appreciated the magnitude of the task when he said:
There is no direct, eye witness evidence of how the deceased received the injuries on his head. There has been some argument by counsel as to whether the answers elicited by que