ERIC UYO (APPELLANT)
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.
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.
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."
(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."
(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."
(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.
(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-dead.
(c) On the 5th May 1982, when PW1 and PW2 went to see Henry Egwu Okotie, he had died and had been removed into the mortuary.
On the facts of the case death of deceased from the act of the appellant having occurred within the period of a year and a day, the presumption is that the act of appellant is the cause of death, except it can be shown that deceased died from a cause other than the act of the appellant. The consequence is not different even if he did not intend to kill the deceased. In R. v. Jordan (1956) 40 Cr. App. R. 152, appellant was convicted for murder on the evidence that deceased had died from a stab wound inflicted by the appellant. On appeal, fresh evidence was admitted to show that death was due to bronco-pneumonia following a penetrating abdominal wound. It was stated also that the stab wound which had virtually healed was not the cause of death. It was found that death was caused by a mistaken administration of antibiotics and intravenous injection of liquid. The appeal was allowed. See also R v. Abengowe (1936) 3 W.A.C.A. 85, R v. Oledinma (1940) 6 W.A.C.A. 202. In each of these cases the evidence that death resulted from causes other than alleged was adduced and the fact established by the appellant.
It is an elementary principle that the accused must take his victim as he finds him. It is not sufficient for an accused whose physical assault results in the death of another to argue that his victim who has a weak heart died from such defect and not from the assault. The accused is criminally liable if death resulted from this act.
The principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened. Thus in this case death was caused by the infliction of injury by appellant which was proximate to his death. Section 311 of the Criminal Code provides-
"A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person."
Section 312 has gone even further to deny the accused of my defence where death results from injuries inflicted by the accused, who did not take proper medical care or indeed ignored medical advice. So long as the cause of death is traceable to the injury inflicted by the accused, he would be held criminally responsible-See R. v. Holland (1841) 2 M&W 351; R. v. McIntyre (1847) 2 Cos. C.C. 379. Section 312 provides-
"When a person causes a bodily injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person injured, or that his death from that injury might have been prevented by proper care or treatment."
The important consideration for determining responsibility is whether death of the deceased was caused by injuries he sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries-See R. v. Effanga (1969) 1 All N.L.R. 339.
In the appeal before us Counsel for the appellant relying on Ukorah v. The State (1977) 4 S.C. 167, has submitted that the prosecution failed to establish the link between the act of the appellant and death of the deceased. I am unable to accept the admission. The facts of this case seem to me clearly different and are distinguishable from Ukorah v. The State relied upon. In Ukorah v. The State there was evidence that the appellant assaulted the deceased with bare fists, and no matchet or any sharp instrument, or indeed any other dangerous weapon, was used by him or any of his associates. The deep long cut at the back of the body was produced ante mortem or post mortem. The complainant had reported a case of murder to the police before deceased was discovered.
In the instant appeal there was evidence that appellant and his associate used iron and wood on the deceased and that the deceased was found at the time half-dead and unable to talk. The deceased died less than twelve hours of the assault on him. Several open wounds were found all over the body of the deceased on the date of the assault.
In my opinion where the assault of the brutal kind stated to be inflicted on the deceased is proximate to the death of the deceased, it is in the absence of any contrary evidence of any other cause safe to hold that there is a direct link between the injuries inflicted and death of the deceased. It is the law that where death is caused by infliction of wounds of such severity that death must have been anticipated as the only natural result of the act, the person who has inflicted such wounds is guilty of murder-See Obogo v. The State (1972) S.C. 39.
Counsel for the Appellant has submitted that the Court of Appeal had wrongly applied section 313 of the Criminal Code. The passage criticised is where the Court said,
"So even if the deceased was treated in hospital before he died then in order to exculpate the Appellant, it must be proved by evidence that such treatment was carried out mala fide and that it actually caused the death of the deceased. The burden of proof in this instance would, in my view, fall squarely on the defence"
It is well settled that even where the medical treatment results in the death of the deceased, a conviction for murder will lie except the deceased died from other cause-See R v. Abengowe (supra) R. v. Jordan (supra). Counsel had relied on S. 148(d) of the Evidence Act as raising an adverse presumption on the failure to tender the post mortem report. It was submitted that it was wrong to shift the onus on to the appellant that he did not fall within the presumption of section 313 of the Criminal Code.
I do not agree with this submission. I have already analysed section 312 which is not dissimilar. Section 313 of the Criminal Code provides.
"When a person does grievous harm to another, and such other person has recourse to surgical or medical treatment, and death results either from the injury or the treatment, he is deemed to have killed that other person, although the immediate cause of death was the surgical or medical treatment, provided that the treatment was reasonably proper under the circumstances, and was applied in good faith."
There is no doubt that the burden on the prosecution to prove that the act of the appellant resulted in the death of the deceased remained throughout the trial. This includes the onus where there is surgical or medical treatment that the treatment was reasonably proper under the circumstances, and was applied in good faith. It has been held however, that where death results from the treatment applied in good faith, such death was attributable to the grievous harm which necessitated the treatment-See Obogo v. State (1972) S.C. 39. R. v. McIyntyre (1847) 2 Cos C.C.379; R. v. Balue (1975) All E.R. 446, where a member of Jehovah's Witness who received a number of wounds refused blood transfusion and died. It was held that death was caused by the person who inflicted the wound.
Thus where medical treatment reasonably proper under the circumstances was given to the deceased, and in good faith, the accused would still be criminally responsible if death of the victim of the grievous assault results.-See R. v. Blaue (1975) 3 All E.R. 466.
Counsel to the Appellant had submitted that the absence of medical evidence of the cause of death is fatal to the case of the prosecution. It was contended that the deceased died in the hospital and a post mortem examination was conducted. In the circumstance, it was submitted, medical evidence was the best evidence of the cause of death. Counsel relied on The State v. Omada Ebohon & Ors. (1975) 9-11 S.C. 69 at p.77.
With respect this case is distinguishable and clearly different. Here, there is no dispute that the body was that of Henry Egwu Okotie, who was beaten to death by appellant and his confederate. In State v. Omada Ebohon supra, the issue was one of the certainty of the identity of the deceased. In that case, the accused was convicted of the murder of his sister whom he alleged had "belly trouble" followed by "vomiting" and "frequent stooling" and suggesting that these were the cause of death.
The body was exhumed and the Court was confronted with the question of whether the accused was telling lies and that his sister actually died of head injuries. In the judgment of the Supreme Court Fatayi-Williams J.S.C. said,
".....it must be proved not only that the grave from which the body was exhumed was the one in which the deceased was buried, but also that the body on which the head injuries were found were those of the deceased. As no body was called by the prosecution to prove these crucial facts, the injuries found on the head of the body examined by the doctor could not be traced to the deceased."
(The underlining is mine for emphasis.)
There is no doubt that this omission destroyed the inference that the body exhumed was the body of the victim the murder of which the appellant was accused and convicted. The Court therefore concluded,
"To establish that a crime has been committed in the case in hand, the prosecution must first prove that the grave from which the body was exhumed and the body so exhumed are those of the deceased. And this they have failed to prove."
Summarily stated the prosecution in State v. Omada Ebohon & Ors. (supra) failed to prove that the act of the appellant resulted in the death of a human being. This is not the issue in the instant appeal. The analogy drawn between the instant case and State v. Omada Ebohon (supra) is clearly in opposite. It has been contended that this is a case where absence of medical cause of death is fatal to the case of the prosecution. It was argued that evidence of the circumstance of death was scanty and that the identity of the deceased was not proved.
I think Counsel for the appellant would appear to have ignored all the findings of fact made in both courts below and already accepted in this Court. The opinion of this Court on cause of death and the requirement of medical evidence has been stated in many cases-See Akpuenya v. State (1976) 11 S.C. 269. I shall summarily dispose of the question of medical evidence.
The decision of this Court in State v. Lori (1980) 8-11 S.C. 81 at p.97 is clearly in point. It was there said,
"It is conceded that medical evidence is not always essential. Where the victim dies in circumstances in which there is abundant evidence of the manner of death medical evidence can be dispensed with-See Tonara Bakuri vs. The State (1965) N.M.L.R. 163"
There is abundant unequivocal eye witness account of the assault on the deceased, the nature of injury inflicted, and the state of complete hopelessness in which the appellant and his confederates left him. In my opinion death ensuing proximate to the brutal beating is conclusive that it is the cause of death. In this case the prosecution has not only proved beyond reasonable doubt the fact of the death of the deceased, it has also been established that the fact of the appellant caused the death-See Omogodo v. State (1981) 5 S.C. 5 Sunday Omuniya v. The State (1976) 5 S.C.
In the instant appeal, appellant has failed to show that the prosecution has failed to establish the cause of death of the deceased, and that the act of the appellant caused the death of the deceased. I have no doubt in my mind that the Court of Appeal was right in their evaluation of the evidence and accepting the findings of fact made by the trial Judge.
Bello, J.S.C.-I had the opportunity of reading the Reasons for Judgment delivered by my learned brother, Karibi-Whyte J.S.C. I adopt them as mine.
Obaseki, J.S.C.-On the 12th day of November, 1985, this appeal came up for hearing. After hearing the submissions of counsel for the appellant and the submissions of counsel for the respondent, I dismissed the appeal for lack of merit and reserved my reasons for the judgment till today. I now proceed to give them.
Three issues were raised for determination in this appeal. The first issue is: "Whether there was enough proof of the cause of death;"
The second issue is:
"whether the cause of death was traceable to the act of the appellant;"
and the third issue is:
"whether there was proper evaluation of the evidence adduced by all the witnesses who testified at the trial."
The issues have been examined and dealt with in detail in the reasons for judgment just delivered by my learned brother, Karibi-Whyte, J.S.C., the draft of which I had the advantage of reading in advance. I agree with the reasons given and I am of the same opinion. It was for those reasons that I dismissed the appeal against his conviction and sentence of death for murder from the decision of the Court of Appeal affirming the judgment of the High Court.
The evidence of the 2nd p.w. (Apostle Leonard Nwasodi) and the 3rd p.w. (David Akpotor), eye witnesses to the savage assault on the deceased, Henry Egwu Okotie, with iron rods inflicting bleeding gaping wounds all over is body from which he died, established a formidable case of murder against, the appellant.
The only weakness or lacuna in the prosecution's case was the absence of the evidence of Dr Eyekekpolo who performed the post mortem examination on the deceased. However, the evidence that the deceased was beaten to unconsciousness or half dead with a rain of blows with iron rods and left a bleeding corpse who never recovered consciousness . . . adequately fulfils the role of the missing evidence.
Where the visual observation of the witnesses of the effect of the acts of the accused/appellant on the victim shows that the death of the victim is the direct result of the accused/appellant and the court is entitled to act on it, Kato Dan Adamu v. Kano Native Authority (1956) F.S.C. 25. The Court of Appeal was therefore right when it said:
"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."
The areas of conflict referred to as contradictions by learned Counsel for the appellant contain no contradictions which destroy the case for the prosecution or are fatal to the conviction. It appears to me that the contradictions are constructions more in the air than on the pages of the proceedings. The case of The State v. Omada Edobor (1975) 9-11 S.C. 69 at 77 cited by learned Counsel for the appellant is distinguishable from the instant appeal. Similarly is the case of Stephen Ukorah v. The State (1977) 4 S.C. 167 at 177.
The appellant in his statement Exhibit A did not deny the incident. He presented himself therein as the peacemaker separating the combatants. But there is evidence accepted by the learned trial Judge that he participated in raining blows on the deceased with iron rods till the deceased became half dead and never recovered consciousness.
In the case of Stephen Ukorah v. The State (supra), the evidence of p.w. 2 Joachim Ekwuobi which was believed by the learned trial Judge, Uwaifo, J. was that when he managed to escape from the attack of the appellant, the appellant was beating the deceased, Raphael Okafor, with his fists but when he later returned to the scene with the police, they found the corpse with the back of the neck swollen and a deep long cut in the back. There was no evidence as to the cause of death because there was no post mortem examination of the body of the deceased. In his testimony, the appellant denied the story that he went to the house of p.w. 1 and p.w. 2 and attacked p.w. 2 and the deceased. He claimed he was in his house throughout the relevant period of the night of 17th August, 1973.
In the Reasons for Judgment of the Court, allowing the appeal against the conviction by Uwaifo, J., delivered by Idigbe, J.S.C., the learned Justice at page 174 said:
"We are however unable to agree with the underlined statements of the learned trial Judge in the passage of his immediately set out above.
'Circumstantial evidence is as good as, sometimes better than, any other sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken claim of evidence. If that is established to the satisfaction of the jury, they may well and properly act upon circumstantial evidence.'
(Humphrey J. in Rex v. Chung v. Miao cited in 'Wills on Circumstantial Evidence Seventh Edition 1936, p. 324)
And at p. 175 the learned Justice gave reason for the court's inability to agree with Uwaifo, J.'s findings as follows:
"We would like to point out that in the case of Onufrejezynk (supra) and Kato Dan Adamu (supra) there were other facts which point irresistibly to the accused person (and no one else) in each of the cases being the culprit (i.e. the murdered). In the case in hand, the learned trial Judge seemed to have overlooked the following facts:
(i) that the evidence is that the appellant attacked the deceased and beat him up with bare fists;
(ii) there is no evidence that the appellant or any of his associates was armed that evening with a matchet or any sharp instrument (or any other kind of instrument capable of inflicting a cut on the human body);
(iii) that when well over thirty hours since "escaping into a nearby bush" the p.w. 2 (Joachim Ekwuobi) reappeared at the scene of crime (the village hut in which he and the deceased lived) he found the deceased already dead with "a long deep cut" at the back of the body;
(iv) that there is no evidence as to (i) the cause of death and (ii) whether "the long deep cut" on the body of the deceased was produced ante-mortem or post mortem; for in the later event, the existence of such a cut may be irrelevant if for instance, the cause of death was decidedly a result of a shock from a blow of the fist or asphyxia; and
(v) that at the police post, the star witness, Joachim Ekwuobi had already reported a case of murder before he and the police officer saw the corpse and he knew that the deceased had died.
From the foregoing facts, it is, we think, pretty clear that the circumstances surrounding the death of the deceased given in evidence when accepted (as, indeed, they were, by the trial court) do not make such a "complete and unbroken chain of evidence" as to justify a jury (or a trial court) in coming to the irrestible conclusion that the prisoner at the bar (in this case, the appellant) and no one else was the murderer."
In the instant appeal, there is a complete and unbroken chain of evidence to justify the conviction by the trial Judge and the affirmation of the conviction by the Court of Appeal.
Uwais, J.S.C.-I have had the opportunity of reading in draft the reasons for judgment read by my learned brother, Karibi-Whyte, J.S.C. As it was for the same reasons that I agreed on 12th November, 1985 that the appeal should be dismissed, I do not desire to add anything more. I accordingly adopt the said reasons as mine.
Coker, J.S.C.-On the 12th November, 1985 this appeal was dismissed, and I indicated that reasons will be given today.
The facts of the case and the three main contentions of the learned Counsel have been fully stated in the lead Reasons just delivered by my learned brother, Karibi-Whyte, J.S.C., the draft of which I have had the opportunity of reading. I agree with his reasoning and the authorities which he has elaborately set out in his judgment.
The evidence before the trial court shows that the appellant and his confederates attacked the deceased, some with iron rods and others with wooden objects. His body was found soon after with several open wounds with blood shedding there from.
He was lying speechless and half dead. He never regained consciousness until he was found dead in the hospital on the following day. No evidence was given that he received any medical treatment before his death. At the trial no medical evidence was called as to the cause of death, but the learned trial Judge found on the evidence and the surrounding circumstances that he (Henry Egwu Okotie) died as a result of the injuries inflicted on him by the appellant and his confederates. He therefore found appellant guilty of murder and sentenced him to death by hanging under Section 319(1) of the Criminal Code. Cap. 48 Vol. II Laws of Bendel State.
On appeal to the Court of Appeal, Ete J.C.A., who read the lead judgment, set out the evidence and findings of the trial Judge vividly and the grounds of appeal. After considering and rejecting each of the three grounds, which are similar to those canvassed before this Court, he dismissed the appeal.
Before this Court, the grounds of appeal as set out in the lead judgment and in the Brief of the appellant were argued and at the end I came to the conclusion that Counsel for the appellant was unable to advance any convincing argument why the appeal should be allowed.
The 2nd p.w. Apostle Leonard Nwazodi was an eye witness to the incident. He knew the appellant before that date. He came out following the shout of the deceased person and saw three men including the appellant hitting him with iron rod and wooden objects. The deceased was found with the wounds lying down half dead after the three men had fled the scene. He was carried to the hospital on the same day and on the following morning he was found dead and his corpse removed to the mortuary.
The trial Judge found that he died as a result of the injuries inflicted on him by the appellants and his associates.
The court below accepted the findings of the trial Judge and refused to be drawn into speculative arguments, not supported by evidence, that death could have resulted from some other cause not connected with the injuries inflicted by the appellant and his associates.
The court also rejected the argument that the identity of the person taken to the hospital and found dead was not proved to be that of Henry Egwu Okotie. The court also rejected the argument that there were material contradictions in the evidence of the 1st p.w. and 2nd p.w.
I agree that the decisions of the two lower courts were all on matters of fact which the trial Judge found and which were based on the evidence and reasonable inference form the facts which he found. My learned brother has copiously examined the authorities as applicable to the facts and contentions of learned Counsel for the parties. In conclusion, all the grounds of appeal were rejected and the appeal was accordingly dismissed.