ERIC UYO v ATTORNEY GENERAL, BENDEL STATE (SC 68/1985) [1986] NGSC 11 (7 February 1986)
ERIC UYO v ATTORNEY GENERAL, BENDEL STATE (SC 68/1985) [1986] NGSC 11 (7 February 1986)
ERIC UYO (APPELLANT)
v.
ATTORNEY GENERAL, BENDEL STATE (RESPONDENT)
(1986) All N.L.R. 126
Division: Supreme Court Of Nigeria
Date of Judgment: 7th February, 1986
Case Number: (SC 68/1985)
Before: Bello, Obaseki, Uwais, Coker, Karibi-Whyte, JJ.S.C.
The deceased was the landlord to a land which was a subject of dispute between the appellant and some other person.
On the 17th April, 1982 the appellant and some other entered the land in dispute and destroyed the church and other building standing on it, the incident which was reported to the Police. On the 4th May, 1982, the appellant and some other persons came again and this time attacked the deceased leaving him half dead.
The evidence of the prosecution as given by two witnesses was that the appellant hit the deceased with an iron rod. Evidence was also given of the state of the deceased after assault. This was corroborated by the Police to whom the case was reported.
The appellants on the other hand denied hitting the deceased with an iron rod, stating that he was present at the incident in a peace making capacity, trying to prevail upon those who were committing the assault on the deceased to stop.
The trial Judge upon the evidence of the prosecution found the appellant guilty.
The appellant, appealed against this judgment at the Court of Appeal. However, the Court of Appeal affirmed the decision of the trial Court.
The appellant then further appealed to the Supreme Court on two grounds basically that is, whether there was satisfactory evidence of the cause of death and whether the death of the deceased was traceable to the act of the appellant. The appellant contended that the evidence of the prosecution as given by witnesses were contradictory and that there was no medical certificate or evidence as to cause of death. Furthermore the appellant contended that there was no proper identification of the deceased.
HELD:
1. In a case of homicide it is incumbent on the prosecution to prove the cause of death unless the cause of death is positively proved either by direct evidence or by circumstantial evidence.
2. It is cardinal requirement of proof in a charge of murder that the accused intended to kill or do to the person killed or some other person some grievous harm, and the act of the appellant in hitting the deceased with an iron rod as stated in the concurrent findings of the trial and Appeal Court amounts to intent to kill or cause grievous harm.
3. It is trite law that the Supreme Court will not interfere with the concurrent finding of two lower courts unless in exceptional circumstances.
4. The discrepancy in the evidence of the prosecution as to whether the deceased was first taken to the police station before he was taken to the hospital, as stated by both the trial and Court of Appeal is not a material ingredient of the offence and does not affect the case of the prosecution and it is not necessary for the PW1 (i.e. the Police to whom case reported) to have known the deceased.
5. The principle of causation dictates that an event is caused by the act proximate to it and since on the facts of the case death of the deceased occurred within the period of a year from the act of the appellant the presumption is that the act of the appellant is the cause of the death.
6. Medical evidence is not always essential where the victim dies in circumstances in which there is abundant evidence of the manner of death medical report can be dispensed with.
Appeal dismissed.
T.J.O. Okpoko for Appellant.
Ayo J. Alufohai, Senior State Counsel, Ministry of Justice, Benin-City for Respondent.
Karibi-Whyte, J.S.C.-On the 12th November, 1985, after hearing Counsel for the appellant and respondent on the elaboration of their briefs filed in this appeal, this Court unanimously dismissed the appeal of the appellant and indicated that the reasons for so doing will be given today. I therefore herein proceed to give my own reasons.
On the 11th March, 1985, the Court of Appeal, Division at Benin City, dismissed the appeal of the appellant against his conviction for murder on the 25th May 1984 in the High Court, Sapele. This is an appeal against the judgment of the Court of Appeal.
Appellant was on the 9th January 1984 arraigned before the High Court, Sapele for the murder of Henry Egwu Okotie on or about the 4th day of May 1982, at Sapele. This is an offence contrary to Section 319(1) of the Criminal Code, Cap. 48, Vol. II, Laws of Bendel State 1976. Appellant was tried and found guilty, convicted and sentenced to death.
It is necessary to state some pertinent aspects of the facts of the case because of the contention of Counsel to the appellant both in the Court below and before us. The case of the prosecution is contained in the evidence of the three witnesses called in support. The appellant's case is one of a denial, not that he was not present at the scene of the crime but that his association was merely in a peacemaking capacity namely prevailing upon those who were committing the assault on the deceased to stop.
The deceased, Henry Egwu Okotie, was the Landlord of the premises occupied by Apostle Leonard Nwasodi and on which the latter had built his Church. It appears from his evidence in Court, that, unknown to him, there was a dispute with respect to the ownership of this Land. This was because on the 17th April, 1932, Leonard Nwasodi, who is the 2nd P.W. in the trial High Court, had observed appellant with some others destroying the Church and other buildings on the Land. When 2nd P.W. intervened, he was assaulted by them and ordered to run away for his dear life. He accordingly reported this incident to the Police. He was accompanied to the scene by a Police Officer; but the accused and his associates had left before their arrival.
On the 4th May, at about 3.30 p.m. 2nd P.W. was again attracted by the shout of the deceased that his assailants were trying to kill him because of his father's property. 2nd P.W. went to the scene and saw the accused and two others with iron rod and wood beating the deceased. Before P.W.2 could call the Head of the Night Guards to come and witness the incident and possibly save the deceased, the appellant and his confederates had left the scene leaving the deceased half dead. P.W.2 then went to a Police Station to lodge a complaint. After this complaint a neighbour conveyed the deceased to the Hospital. When P.W.2 visited the deceased in the hospital the next day he discovered the deceased had died and was already in the mortuary.
In his evidence 2nd P.W. stated that appellant used iron on Henry. "Henry fell, he could not fight back." P.W.3, David Akpotor, who was also an eye witness of the incident and the son of the owner of the premises where the deceased was Landlord, stated in his evidence how at about 8 p.m. of the 4th May 1982, he was told that those persons who destroyed his house were there again. He went to the scene and saw the deceased on the floor being kicked and marched on by three persons. He said that the appellant was one of the three and that appellant hit the deceased on the head with an iron rod which he had with him. P.W.3 rushed into the fracas to separate the parties and received a matched cut on his left hand. He escaped and was pursued by a member of the gang. One Papa Yeghe held on to and prevented the man pursuing him from doing so.
Appellant who was a Security Inspector at the Delta Steel Company, Aladja, admitted in his evidence that he came to the scene on the date and time in question. He heard the voice of one Chubi who he described as a relation of his brother, and ran to the spot and observed that Chubi was one of the many of those fighting. He separated the fight and retired to his brother's place. He denied beating the deceased in the course of separating those fighting. He denied ever meeting the deceased before that day. Under cross-examination, he admitted that he told the Police that people were fighting one man, but denied that he told them that the man was helpless on the ground. He also denied telling the Police that he went to separate the fight between Chubi, his friend, and the other man because of the poor condition of the man they were beating.
There was also evidence of the P.W.1, the Police Officer who followed 2nd P.W. to the General Hospital, Sapele to see the deceased both on the day of the incident, and to the scene of the incident. P.W.1 also went to the General Hospital on the 5th May 1982 and was informed the deceased was dead. Papa Yeghe identified the body of the deceased to P.W.1. Papa Yeghe is now dead. He had made a statement in this case before he died.
In his finding of facts the trial Judge found that-
(a) On the 4th May 1982, there was a fight resulting in the death of the deceased Henry Egwu Okotie.
(b) The Henry Egwu Okotie was taken half dead from the scene of the crime to the General Hospital, Sapele.
(c) Henry Egwu Okotie died as a result of the instruments used on him, an iron rod and wood. There were eye witnesses to the assault on the deceased.
In his judgment, the trial Judge held that the deceased died as a result of the assault and accordingly medical evidence was not necessary to establish the cause of death. He also found that the appellant was on the evidence properly identified by the eye witnesses and on his own admission present at the scene of the crime as one of those who assaulted the deceased.
In the Court of Appeal, counsel filed four original grounds of appeal and with the leave of Court filed five additional grounds of appeal. The nine grounds of appeal were reduced to three issues, namely,
"(a) On the evidence before the learned trial Judge was the identity of Henry Egwu Okotie proved beyond reasonable doubt to be the person said to have died?
(b) If Henry Egwu Okotie is proved to be dead was the cause of death of the deceased proved beyond reasonable doubt and was the death of the said Henry Egwu Okotie satisfactorily shown to be traceable to the act of the accused person or any other person for whose criminal acts accused is answerable; and
(c) Having regard to the totality of the evidence before the Court, was a case of murder proved beyond reasonable doubt against the Appellant."
The Court of Appeal carefully examined each of the issues and considered the findings of fact of the learned trial Judge and came to the conclusion that the identity of the deceased as the person assaulted by appellant and his confederates was proved beyond reasonable doubt. The Court of Appeal also held that on the evidence before the learned trial Judge the cause of death was properly attributable and traceable to the act of the appellant. This had to be so whether the cause of death was as a result of the assault, or from the fact the deceased had died from the medical treatment resulting from the injury inflicted on him by the appellant. There was no evidence that the deceased received any medical treatment from the injuries he received from the beating.
The appeal was accordingly dismissed. Appellant has in this Court filed four grounds of appeal which are reproduced below.
GROUNDS OF APPEAL
1. The Learned Justices of the Court of Appeal misdirected themselves in Law and on the facts-when they held:-
"In my view, the fact that Henry was first taken to the Police Station before he was rushed to the hospital is merely a matter of detail, and I do not consider it to be fatal to the prosecution case if PW2 omitted to give this evidence in Court. What is important is that PW2 saw Henry during the time he was brutally attacked by the appellant and others; he saw him lying half-dead on the ground after he returned from the head-man of the night-guards to whom he had gone to tell of the brutal attack; when he saw him at the hospital on the next day-he was dead. PW1 saw Henry at the Hospital on the very night of the attack half-dead. On the next day he went back to see him he saw that he was dead."
PARTICULARS
(a) The Learned Justices failed to appreciate the real question before them-to wit whether by the evidence of PW1, PW2 and Exhibit B, the possibility that PW1 and PW2 were referring to two different persons was in fact clearly eliminated.
(b) The Learned Justices wrongly dismissed as none matters of detail the question as to whether Henry-the victim was taken to the Police Station before being taken to the Hospital.
(c) The Learned Justices wrongly overlooked the question as to who took the victim to the hospital and the broken chain of evidence of identity of the victim.
(d) The Learned Justices failed to appreciate the contradiction between PW1's and PW2's evidence as to the person seen at the Hospital/Mortuary (injured/dead).
2. The Learned Justices of the Court of Appeal misdirected themselves in Law when they held:-"The case in hand is not comparable with the case of Onubogu & Anor. v. The State (1974) 9 S.C. 1 because
(a) the evidence of PW2 in the case in hand is substantially the same as his statement to the police-Exhibit 'B' and
(b) the evidence of PW1 does not contradict that of PW2 in any material particular."
PARTICULARS
(a) Evidence of PW2 that he saw Appellant hit the deceased with an Iron Rod is not substantially the same as his statement in Exhibit B that he saw Appellant hit deceased with wood.
(b) Evidence of PW1 that he immediately went with PW2 to the hospital where he observed that the deceased had open injuries all over the body was clearly not consistent with evidence of PW2 whose evidence was that a neighbour took the deceased to the hospital without suggesting that he himself went to the hospital that night.
(c) Exhibit "B" is to the effect that it was to the Police Station victim was taken and that it was the Police who took deceased to the hospital.
3. The Learned Justices misdirected themselves in Law and on the facts-when they held:-
"The evidence of the cause of Henry's death is that of PW1, PW2 and PW3 and indeed the statement of the appellant himself. Henry died from wounds brutally inflicted to him by the Appellant and his friend."
PARTICULARS
(a) Neither PW2 nor PW3 gave evidence of the nature or injury from which cause of death could be found or inferred.
(b) There was no nexus between the open injuries PW1 claimed to have observed on the body of the deceased and the evidence of PW2 and PW3.
(c) No witness testified as to the nature of injury inflicted on the deceased from which cause of death could be inferred.
4. The Learned Justices misdirected themselves in Law in their consideration of counsel submission on the cause of death and of Sections 311 and 313 of the Criminal Code.
PARTICULARS
(a) The Learned Justices did not consider and did not resolve the points made in Part C of the Appellant's Brief-to wit-the seven listed points which the Learned Trial Judge overlooked in drawing the inference that death of the deceased resulted from beating.
(b) The Learned Justices wrongly put the burden of proving the provision to Section 313 of the Criminal Code on the Appellant.
5. The judgment of Court of Appeal is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.
The two issues for determination involved in these grounds of appeal have been formulated by Counsel to the appellant as follows-
"(a) Was the Court of Appeal right in holding that cause of death of the deceased was proved beyond reasonable doubt and that the death of the said deceased was satisfactorily shown to be traceable to the act of the Appellant and
(b) having to the totality of the evidence before the Court was a case of murder proved beyond reasonable doubt against the Appellant?"
All the grounds of appeal filed can properly be argued under the penumbra of the two issues thus formulated. The issues involved therefore in (a) are whether there was satisfactory evidence of cause of death, and whether the death of deceased was traceable to the act of the Appellant.
Relying on Rex v. Oledinma (1940) 6 W.A.C.E. 202, counsel for the Appellant argues in his brief, and I agree with him, that in a case of homicide, "it is incumbent on the prosecution to prove the cause of death, and unless the cause of death was positively proved either by direct evidence or by circumstantial evidence that leaves no room either for doubt or speculation, the prosecution could not obtain a conviction.
Certainty is an essential element of proof in criminal liability. The dictum of the West African Court of Appeal in R v. Oledinma (supra) that
"To establish a charge of murder of manslaughter, it must be proved not merely that the act of the accused could have caused death of the deceased but that it did."
is a cardinal requirement of proof in charges of murder. It is one of the ingredients of the offence of murder that the accused intended to kill or do to the person killed or some other person some grievous harm. See Basoyin v. A.G. (1966) N.M.L.R. 287. This requirement of section 316 (2) of the Criminal Code has been established in R.v. Nungu (1953) 14 W.A.C.A. 379; R. v. Adi (1955) W.A.C.A. 6; R. v. Aliechem (1956) 1 F.S.C. 64. In R. v. Nungu (supra) Verity, C.J., delivering the judgment of the Court said,
"but we do not think it would be reasonable to conclude there from that the appellant did not believe that to strike the deceased on the head with the haft of the axe heavily weighted as it was with an iron head, and with such force as to inflict the wound described, would not cause grievous harm. He must in our view have intended the natural and probable consequences of his act and by reason of subsection (2) of section 316 of the Criminal Code a person is guilty of murder if he intends to do the person killed some grievous harm."
In Nungu's case appellant in striking his brother with an axe he was carrying turned away the sharp and cutting edge and struck him with the haft heavy portion. It was argued that this was expressive of an intention not to kill. This is conceded. It is certainly expressive of an intention not to kill. This is conceded. It is certainly expressive of an intention to do grievous harm. Death having resulted, this was murder-See Basoyin v. A-G (1966) N.M.L.R. 287. Thus the offence of murder can be established by proof of either intention or kill or to cause grievous harm if death results-See S.316(2).
Counsel for the appellant, Mr Okpoko, has submitted that the Court of Appeal was wrong to infer from the evidence of PW1, PW2, and PW3 and the statement of the appellant that the death of deceased was attributable to the act of the appellant. The passage challenged by counsel is where it was said that-
"The evidence of the cause of Henry's death is that of PW1, PW2 and PW3, and indeed the statement of the appellant himself. This evidence has been set out above. Henry died from this (sic) wounds brutally inflicted on him by the appellant and his friends. From the nature of the injuries inflicted on Henry as described by witnesses, this is the correct inference to be drawn, even though there is no medical evidence available."
This passage is an acceptance by the Court of Appeal of the findings of fact of the trial Judge that:
(i) Appellant was seen by eye witnesses as one of those who assaulted the deceased
(ii) that the deceased was taken to the General Hospital, half dead as a result of the assault with iron rod and wood
(iii) that the deceased was found dead the next morning in the hospital.
These are now concurrent findings of facts in the two lower courts.
Counsel for the appellant has submitted to us that the Court of Appeal ought not to have accepted the findings of fact of the trial Judge because of contradictions in the evidence of the witnesses. In his criticism of the evidence relied upon, he referred to the evidence of PW1, PW2, and PW3 and contended that the conclusion of the learned judge that the deceased died as a result of the beating in a manner so clear as to exclude medical evidence to prove the cause of death could not be supported by the evidence relied upon.
It was submitted that neither the beating of the deceased nor the shedding of blood is conclusive of the cause of death. That there was a fight is not conclusive that death resulted from the fight. Death of the deceased could have resulted from causes other than the beating in the fight. It was also submitted that if the statement of appellant Exhibit "A" was accepted in respect of the beating of the deceased, it should also be accepted in respect of those who did the beating.
Counsel for the appellant then made specific criticisms of the acceptance of the evidence of the prosecution witnesses. With respect to the evidence of PW1, he referred to the testimony which stated,
"I immediately followed the complainant to General Hospital, Sapele to see the deceased. I observed that the deceased had open injuries all over the body, but was unable to talk or make statement at the time I saw him at the hospital."
It was submitted that this evidence was fatal to the case of the prosecution as being contradictory to the evidence of PW2 and PW3. It was argued that there was no evidence that PW1 knew the deceased before the incident and that there was no evidence that PW1 knew the deceased before the incident and that there was no evidence that appellant or any of the associates attacked the deceased with a matchet or any other sharp instrument capable of creating an open wound. It was submitted that there is no link between the open injuries and the acts of the appellant. Counsel cited and relied on Stephen Ukorah vs. The State (1977) 4 S.C. 167,177.
I shall consider first the submission that there were contradictions in the evidence of the prosecution witnesses as to whether the deceased was taken first to the Police Station before he was taken to General Hospital. This is a challenge to the evidence establishing the identity of the deceased. The learned trial Judge had found that there were no contradictions, and if there were, they were not material. The Court of Appeal agreed with these findings and said that the discrepancy about whether the deceased was first taken to the Police Station before being taken to the General Hospital was a matter of detail and not fatal to the case of the prosecution. I am of the opinion that the essential thing to be proved was whether the person beaten on the 4th May, 1982 and in respect of whom a report to the Police was made the person reported to have died on the 5th May 1982. There having been concurrent findings of fact, this Court will only interfere with the findings in exceptional circumstances shown by the appellant.
There is no doubt that PW2 in his statement to the Police stated as follows-
"I come to report the incident to the police station with other man. We were advised by the Police to bring Okotie to the station and we did so. The Police men then rushed him to the General Hospital, Sapele where he later died."
The evidence of PW1 was as follows-
"On 4/5/82, I was on duty at DCB, Sapele when a case of assault occasioning harm was reported on behalf of the deceased Henry by one Apostle. I immediately followed the complainant to General Hospital, Sapele to see the deceased. I observed that the deceased had open injuries all over the body, but was unable to talk or make statement at the time I saw him at the Hospital."
The suggestion is that the deceased was first taken to the Police Station, and later to the Hospital. It is the evidence of PW1 that he accompanied PW2 to the General Hospital to see the deceased on the 4th May, 1982. Thus the fact that PW2 said that a neighbour took the deceased to the Hospital did not destroy the evidence that it was the same person about whom PW1 and PW2 were referring to and the same incident. It seems to me that what looked like a contradiction is in the evidence of the PW2, on oath, and his statement to the Police. There is no conflict between the evidence of PW2 in Court and PW1. I agree with the view of the Court of Appeal, that
"the fact that Henry was first taken to the Police Station before he was rushed to the hospital is merely a matter of detail, .......... What is important is that PW2 saw Henry during the time he was brutally attacked by the appellant and others, he saw him lying half-dead on the ground after he returned from the headman of the night guards to whom he had gone to tell of the brutal attack; then he saw him at the hospital on the next day-he was dead. PW1 saw Henry at the hospital on the very night of the attack, half-dead. On the next day he went back to see him he saw that he was dead."
The underlining is mine for emphasis. Whether the deceased was first taken to the Police Station before he was taken to the hospital is not a material ingredient of the offence and does not affect the case of the prosecution. There is no merit in the criticisms that PW1 did not know deceased before the 4th May. It is not necessary for PW1 to have known the deceased before that date. There was evidence that PW2 accompanied PW1 to see the deceased in the hospital on the 4th May 1982, the date of the incident-See Nasamu v. State (1979) 6 S.C. 153 at p. 159. I agree with Mr Alufohai for the respondent that the issue is not material. The essential ingredients are that the deceased was brutally assaulted by appellant and his confederates which assault was intended to cause grievous harm, and resulted in the death of the deceased. There was evidence before the learned trial Judge, believed by him and accepted that-
(a) Henry Egwu Okotie was the person assaulted with iron and wood, on the 4th May, 1982, in respect of who PW2 made a report to the police PW2, PW3 were eye witnesses.
(b) PW1 accompanied PW2 to the hospital to see Henry Egwu Okotie who was unable to speak to him. He had severe open injuries all over his body and was considered to be half-dea