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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 7TH DAY OF MAY 1976

SC 175/75

BETWEEN

SUNDAY OMONUJU ........................................................ APPELLANT

AND

THE STATE ................................................................ RESPONDENT

BEFORE: Sowemimo, Madarikan and Idigbe, JJ.S.C.

 

Soon after being criminally assaulted by the defendant, who struck her on the head with a mortar pestle and kicked her violently on the stomach after she fell from the blow, the deceased, who was pregnant at the time, bled from the vagina.

Some three months later, after reporting regularly for two months for treatment as an out-patient at the hospital into which she had been admitted on the day of the incident and from which she had been discharged after three days, she had severe headache and stomach pain and was re-admitted into another hospital, where she aborted a foetus and died within hours of admission.

The cause of death was, unquestionably, prolonged bleeding from the vagina leading to an unnatural abortion. The issue in the Supreme Court was whether there was sufficient nexus between the assault and the cause of death to justify the defendant's conviction for murder.

The doctor who first saw the deceased after the assault did not testify, his report was admitted in evidence; and the only evidence as to the deceased's condition immediately before her death was hearsay. The evidence of the doctor who performed the autopsy was that the vaginal bleeding could have been caused by some mechanical factor which could have occurred prior to the bleeding, but there was no evidence that this factor could not have occurred before the assault, nor that the unnatural abortion had any connection with the assault.

 

HELD:

On the state of the medical evidence, the cause of death cannot be assigned unequivocally to the criminal assault on the deceased by the defendant.

 

Cases referred to

Onyenankeya v. The State (1964) N.M.L.R. 34 at 36

The Queen v. Owe (1961) 1 ALL N.L.R. 680

Albert v. The Queen (1960) W.N.L.R. 31

APPEAL allowed. Conviction set aside.

Akinrele for the appellant.

Ekpe, Principal State Counsel, Anambra State for the respondent.

Idigbe, J.S.C. (delivering the judgment of the Court):-Charged with the offence of murder of Margaret Imo on the 8th day of March, 1974, the appellant was convicted and sentenced to death on the 12th of May, 1975, by the High Court (AGUTA. J.) of Imo State (then East Central State) and he now appeals from the said judgment.

The facts in support of the case for the prosecution which the learned trial Judge accepted were, briefly, as follows:-

On the evening of 15th December, 1973 the appellant assaulted the deceased following her failure or inability to report immediately to the appellant, who summoned her. The deceased who was at the time expecting a baby was having her meal when the appellant called her from outside her house and in reply she said she would report to the appellant immediately after taking her meal. Angered by her delay in reporting to him the appellant rebuked the deceased and struck her violently on the head with a mortar pestle (Exh. G) which he picked from the receptacle lying nearby. The deceased immediately fell on the ground but the appellant kicked her violently with his foot on the stomach. She was seen soon after to bleed from the head and the vagina. Later that evening she was taken to the Awo-Omoma Community Hospital after she had first been taken to the police station at Mgbidi where a report was duly lodged. She was admitted as an in-patient at the Awo-Omoma Community Hospital and although she was discharged three days later and was asked to report, and did report, regularly for further treatment as an out-patient for a period of two months after which she suffered from "severe headache and pain in the stomach", she was obliged to be re-admitted into a hospital (this time at the Catholic Mission hospital at Ihiala) on the night of 8th March, 1974; that night she aborted a foetus just before her death within hours of admission.

In his own defence the appellant denied striking the deceased on the head with Exh. G; he also denied that he gave the deceased a kick in the stomach. The learned trial Judge, however, did not believe the account he gave in his defence of a fight between the deceased and his wife (who was then three months pregnant) in the course of which he struck the deceased accidentally with a torchlight as he endeavoured to separate both of them. There was also evidence which the learned trial Judge accepted that as the appellant attacked and assaulted the deceased he did so with reckless abandon and boasted that he could not be bothered with the consequences of the assault. The medical evidence before the lower court to which we shall refer later was not entirely satisfactory.

However, the question in this appeal is whether the deceased died as a result of the action of the appellant or, put differently, whether the appellant's unlawful act was the direct cause of death in the case in hand; and consequently the issue for our determination is whether, given the facts in this case and the state of the medical evidence, there was sufficient nexus between the assault by the appellant and the cause of deceased's death as would make the appellant liable for the offence with which he was charged.

The report (Exh. F) of the medical officer (at Awo-Omoma Community hospital) who saw the deceased on 17th December, 1973, two days after the assault confirmed that she had a lacerated wound on the left side of the head; although 3½ months pregnant at the time, she was bleeding from the vagina and in the doctor's opinion the bleeding was consistent with a violent assault (such as a kick) on the stomach. The only evidence of the condition of the deceased immediately prior to her death was that of Dr Chidume P.W.3, the consultant surgeon at the Catholic Mission Hospital Ihiala where the deceased died on 8th March, 1974, shortly "after aborting a foetus" within a few hours of her admission. The evidence of the doctor, however, was not helpful because his testimony (which should not have been admitted in evidence being, indeed, "hearsay") derived from a report in the "hospital record" which he neither kept nor made. His opinion as to the cause of death, based as it was on the said record (i.e. the "hospital record"), was in so far as it was intended to establish the cause of death in the case in hand, certainly inadmissible. The only other evidence that has any relevance on the subject was that of Dr Felix Nwalusi of the General Hospital Owerri (P.W.4) who performed the autopsy on the 12th of March, 1974, four days after the death of the deceased but three months after the date of the assault on her. According to P.W.4 the autopsy revealed that the deceased who was 20 (twenty) weeks pregnant had "no traumatic injury to the cervix"; "the uterus was of normal size" but "she was bleeding per vagina". P.W.4 then certified the cause of death to be "sub-partum haemorrhage" (and this expression according to the doctor, means that "there had been some bleeding in the vagina for some time before death"). Under cross-examination the doctor said (1) that deceased could have bled for some four to five days before her death, (2) that the bleeding could have been caused "by some mechanical factor which could have occurred prior to the vaginal bleeding"; but he did not (and was not even questioned on the issue) say that this mechanical factor could not have occurred before the 15th December, 1973 (the date of the assault by the appellant on the deceased). Although the doctor (P.W.4) said that the abortion which occurred immediately before the death of the deceased "could not have been natural" he did not say (and, not having examined the deceased earlier, was not in a position to do so) that it had any connection with the assault on the deceased by the appellant on 15th December, 1973. There certainly was no such evidence and the facts in this case do not allow for any legitimate inference that such was the case.

On the issue relating to "cause of death" in this case the learned trial Judge observed:-

"The whole of the evidence of this witness (i.e. the doctor P.W.4) accord's with the prosecution's case, reinforces Exh. F-the report of the doctor who first saw the deceased after the assault-and thus renders certain, in my view, the cause of death".

(Brackets and italics supplied).

There is no question that the deceased died as a result of prolonged bleeding from the vagina leading to the unnatural abortion of the foetus she carried. We, however, think that the learned trial Judge missed the very important point in this case (i.e. the principal issue) which is whether this cause of death is unequivocally referable to the criminal assault on the deceased by the appellant on 15th December, 1973. The non-direction by the learned trial Judge to this important issue in his rather detailed judgment underscores this fact. In an earlier portion of his judgment the learned trial Judge observed that:-

"If the defence alleges that something else intervened to cause the death, the defence must prove it, for he who alleges must prove..."

We must however point out here (as we did in Onyenankeya v. The State) that "the fact that the defence in a charge of murder did not suggest that death arose from other causes is NOT confirmation of evidence which falls short of showing that death did arise as a result of the act of the accused"; the onus of establishing this is always on the prosecution and not on the defence. And when the defence makes such a suggestion, as it has done in the case in hand, there is no obligation on the defence to establish the suggestion because the onus is on the prosecution throughout to prove beyond reasonable doubt the charge against the defendant. As was stated in the case of Frank Onyenankeya. (supra)

"It is good law that medical evidence is not always essential though desirable to prove the 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 Frank Onyenankeya v. The State (1964) N.M.L.R. 34 at 36 per Taylor J.S.C.

We have, therefore, come to the conclusion that on the state of the medical evidence in this case the cause of death cannot be assigned unequivocally to the criminal assault on the deceased on 15th December, 1973, by the appellant and, accordingly, he cannot be liable for the offence charged in the Information.

Learned Principal State Counsel for the respondent has asked us to substitute a conviction for attempted murder and has also drawn our attention to the case of the Queen v. Izobo Owe (1961) 1 ALL N.L.R. 680. As was stated in Sunday Albert v. The Queen (1960) W N.L.R.31 "The criminal code lays down exactly the same rule in this matter (i.e. the offence of attempted murder) as the law of England, namely that on a charge of attempted murder an actual intent to kill must be proved. Although if death results an intent to cause grievous harm will be sufficient to sustain a charge of murder". The state of the evidence in the case in hand does not justify the finding by the learned trial Judge that the appellant intended to kill the deceased. The facts here are unlike those in Izobo Owe (supra) where the accused attacked the deceased and with savage persistence gave him stab wounds in the neck and in the stomach and even, when prevented from causing further injury on the deceased and taken to task by a third party, regretted his inability to inflict more wounds and said he was prepared to die with the deceased. As was said by this Court (in Izobo Owe) the accused "was out to kill the deceased but was stopped". There is no parallel here; undoubtedly the appellant boasted several times during the assault on 15th December, 1973, that he had enough money to defend the consequences of his assault on the deceased but the facts in evidence do not justify the inference that he intended to kill the deceased; at best they justify the inference that he intended to do grievous harm but while such an intention is relevant to a charge of murder it is insufficient to sustain a conviction for attempted murder.

In our view, the facts in the case in hand do not justify a conviction for attempted murder.

In the circumstances this appeal succeeds. The conviction and sentence must be set aside and a verdict of acquittal entered.