OLADAPO v. STATE
(2020) LCN/4910(SC)
In The Supreme Court
On Friday, January 10, 2020
SC.188/2014
Before Our Lordships:
Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Amiru Sanusi Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Between
MURITALA OLADAPO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT MEDICAL EVIDENCE CAN BE RELIED ON IN MURDER CASES
It must be emphasized that medical evidence is not always a desideratum in murder cases except where necessary to prove death and cause of death. Furthermore, to call the maker of the report is a matter of choice given by the law. A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without hearing medical evidence. PER AJI, J.S.C.
THE POSITION OF LAW ON RELYING ON CIRCUMSTANTIAL EVIDENCE TO SUPPORT A CONVICTION FOR MURDER
It is also the law that for circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that the murder was committed by the accused. The fact that a medical report was not produced does not diminish that the fact that the deceased died. See Per Galumje JSC in Dajo v. State (2018) LPELR-45299 (SC). PER AJI, J.S.C.
THE DUTY OF A JUDGE IN DETERMINING EVERY CASE BY THE FACT AVAILABLE
Although it not good to delve and descend into the arena of a case by a judge, the judge must dispassionately consider and determine every case by every fact available. Thus, a Court is entitled to look into any document in its record and make use of it in order to arrive at a just decision. When a document is in the record of the Court, it cannot be a new issue on which a judge is precluded from looking at. This Court has in a number of decided cases held that a Court of law is entitled to look into its record and make use of any document it considers relevant in determining issues before it. See Per Galumje JSC, in Eromosele v. FRN (2018) LPELR-43851 (SC). The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See Per Kekere-Ekun JSC, in PDP & Ors v. Ezeonwuka & Anor (2017) LPELR-42563 (SC). PER AJI, J.S.C.
WHETHER OR NOT THE SUPREME COURT CAN INTERFERE WITH THE CONCURRENT FINDINGS OF FACTS BY THE LOWER COURT
Finally, it is trite law that this Court would rarely interfere with concurrent findings of facts by the two Courts below except where such concurrent findings of facts appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced, or in violation of some principle of law and procedure. In such circumstances, this Court would not allow such perverse findings to stand. See Per Okoro JSC inJohn v. State (2019) LPELR-46936 (SC). PER AJI, J.S.C.
THE DOCTRINE OF LAST SEEN
Now, although there was no eyewitness account as to the commission of the offence in question, the respondent led evidence to demonstrate that the appellant was the only person who was last seen with the deceased person. I agree with the leading judgment that the appellant’s confessional statement supported the presumption of his guilt by the application of the last seen doctrine. As this Court held in Iliyasu v. State (2015) LPELR-24403 (SC) 44 – 46; E-F, (Per Nweze JSC): “The last see doctrine, a doctrine of global application, Madu v. The State (2012) All FWLR (Pt. 641) 1416, (2012) 6 SC (Pt. 1) 80, (2012) 15 NWLR (Pt. 1324) 405, (2012) 6 SCNJ 129, (2012) 50 NSCQR 67, (2012) LPELR-7867(SC) 51-52, (2012) NCC 533, also, referred to as the last seen theory’, Rajashkhanna v. State of A.P (2006) 10 SCC 172, is applied in homicide cases in Nigeria, Rabi Ismail v. The State (2011) MJSC 20, 77. It creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death, Jua v. The State (2010) All FWLR (Pt. 521) 1427, (2010) 1 – 2 SC 96, (2010) 4 NWLR (Pt. 1184) 217, (2010) 2 MJSC 152, 186 – 187, (2010) LPELR-1637.
Thus, where an accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he (the accused person) killed the deceased person, Igabele v. State (2006) 6 NWLR (Pt. 975) 100; Obosi v. State (1965) NMLR 140; Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1, (1996) 2 SCNJ 47, 61-62; Gabriel v. State (1989) 5 NWLR (Pt. 122) 457,(1989) 12 SCNJ 33, (1989) 20 NSCC 111; Adeniji v.State (2001) FWLR (Pt. 57) 809, (2001) 13 NWLR (Pt. 730) 375, (2001) 5 SCNJ 379, (2001) 87 LRCN 1970, (2001) LPELR – 126; Madu v. The State (supra); Igho v. The State (1978) 3 SC 87, 254, (1978) 3 SC 61, 63.
In view of the said doctrine, therefore, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death. Surely, in the absence of such an explanation, a trial Court and even an appellate Court, will be justified in drawing the inference that the accused person killed the deceased, Igabele v. The State (supra); Obosi v. The State (supra); Adepetu v. The State (1998) 9 NWLR (Pt. 565) 185, (1998) 7 SCNJ 83, (1998) 61 LRCN 415; Adeniji v. The State (supra); Emeka v. The State (2001) All FWLR (Pt. 66) 682, (2001) 14 NWLR (Pt. 734) 666, 683, (2001) 6 SCNJ 259, (2001) 32 WRN 37; Uguru v. The State (2002) FWLR (Pt. 103) 330, (2002) 9 NWLR (Pt. 771) 90, (2002) 4 SC (Pt. II) 13, (2002) 4 SCNJ 282.
The doctrine has been held to be an exception to the watertight constitutional provision that a person is presumed innocent until proved guilty, Madu v. The State (supra) 84, A-D, citing Igho v. The State (1978) 35 SC 51, 62 – 63; Igabele v. State (supra); Nwaeze v. State (supra); Obosi v. State (supra); Uguru v. State (supra); The State v. Kalu (1993) 3 NWLR (Pt. 279) 20, (1993) 7 SCNJ 113, 124-125; Adepetu v. The State (supra); Rabi Ismail v. The State (2011) MJSC 28, 77.” PER NWEZE, J.S.C.
UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Akure, dated 15 January 2014, affirming the trial Court’s judgment against the appellant. The appellant was tried and convicted by the trial Court for murder and sentenced to death by hanging.
The appellant was charged with the murder of a 21-year-old lady, Sikiratu Abaki, who died on 7 April 1998, at Ilobu village in Osogbo, Osun State. It is the record that on 6 April 1998, the mother of the deceased informed PW1 that she could not find the deceased. The following day, Fausatu and Ganiyu informed PW1 that they found the pant and brassier of the deceased. PW2 testified that the deceased was last seen with the appellant. After investigation, the decapitated body of the deceased was exhumed at the entrance of the house of the appellant while the head was found in his ceiling. At the trial, the respondent paraded 6 witnesses and tendered 43 exhibits, which swayed the trial Court to convict the appellant. His conviction was affirmed on appeal by the lower Court, hence this appeal.
In arguing the appeal, the appellant formulated an issue for the determination of the appeal:
“Whether the concurrent findings of fact or summation of evidence as made by the Court of Appeal were perverse and thereby occasioned a miscarriage of justice?”
It is submitted by the learned counsel to the appellant that this Court should form an independent opinion on the confessional statement of the appellant and the post mortem report and that the evidence of PW1-4 did not prove the ingredients of murder against the appellant. That since PW6 did not testify that he was tendering exhibits K1, K2, E and E1, it was wrong for both the trial and lower Courts to extract confessional statements from them. He sought support in Kasa v. State (1994) 5 NWLR (Pt. 344) at 286.
On exhibit D, the post mortem report, he submitted that since the pathologist was not present to be cross-examined, the report is tainted and spurious. He stressed that Section 55 (3) of the Evidence Act, mandates the pathologist to be summoned to testify. He relied on Amayo v. State (2002) FWLR (Pt. 91) at 1592; Ahmed v. State (2001) FWLR (Pt. 34) at 455.
The respondent’s learned counsel’s submission on the other hand is that by the standard of proof beyond reasonable doubt, the prosecution by the witnesses and exhibits presented proved by both voluntary confession and circumstantial evidence that the appellant murdered the deceased. In proving murder against the appellant, it is submitted that the evidence of PW4, PW5 and PW6, the confession of the appellant and the post mortem report, nailed the appellant. He referred to exhibit D as only confirming the confession of the appellant that he killed the deceased for money making ritual. Furthermore, he settled that there is no law that compels the medical doctor to testify in all murder cases where medical report is required. He citedJohn Mamudu Buba v. State (1992) 1 NWLR (Pt. 215) 1; Blessing v. F.R.N. (2015) All FWLR (Pt. 805) 1, (2015) 13 NWLR (Pt. 1475) at 38 and Section 55 (1)(2) & (3), Evidence Act.
On the circumstantial evidence, he stated that exhibits D and E are helpful to establish the murder. He cited in support Nwachukwu v. State (2007) 12 SCM (Pt. 2) at 469. That the confessions of the appellant contained in exhibits E1, E2, K1 and K2 are enough to ground the conviction of the appellant. He relied on Smart v. State (2016) 9 NWLR (Pt. 1518) at 481.
The appellant was charged with the murder of the deceased where circumstantial and confessional evidence was used to convict and sentence him to death. There is no doubt that the prosecution in a murder charge, owes it a duty to discharge by proving the death of the victim as the responsibility of an accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death.
In other words, it is trite law that in a charge of murder, the burden is on the prosecution to prove that the deceased died, that the death was caused by the accused, that the accused intended to either kill the victim or grievously harm him. See Per Ariwoola JSC in Oketaolegun v. State (2015) LPELR-24836 (SC).
To prove the facts narrated above, the prosecution called 6 witnesses and tendered 43 exhibits to establish murder against the appellant. Strong circumstantial evidence exists against the appellant. PW2 testified that the deceased was last seen with the appellant and also witnesses how the headless body of the deceased was exhumed at the entrance of the house of the appellant while the head was recovered from his ceiling. PW4 in collaboration narrated that when he visited the appellant sometime in April 1998, he met the deceased with the appellant after which the deceased was declared missing. He further gave evidence that the appellant himself told him that the deceased died while he tried to administer abortion on her but warned him not to tell anybody or he would implicate him in the murder of the deceased. During the investigation, the appellant showed the police where the deceased was buried and confessed how he killed and dismembered her body and hid the head. PW5, the IPO, further gave testimony that on 8 April 1998, the case of missing person was reported to him wherein it was discovered that it was the appellant that killed the deceased. In fact, he tendered exhibit A wherein the appellant confessed the murder of the deceased. By extension, the mother of the deceased in person of PW3 stated in her evidence that the deceased who was pregnant was missing on 3 April 1998, which impelled them to report the matter to the police. In her testimony, she explained that PW4 informed her that it was the appellant that killed the deceased and made confession to it. All these corroborate the fact that the deceased from 3 April to 8 April missed but was only last seen in the company of the appellant. As circumstantial as the doctrine of last seen may be, the straw that broke the camel’s back is that the deceased’s decapitated body was seen buried and exhumed in front of the appellant’s house and her head discovered in his ceiling. Furthermore, he confessed to the crime.
The next question to ask is “who was responsible in causing the death of the deceased?” There is no doubt that there was no eye witness account of anybody who witnessed the commission of the crime. However, the respondent led credible evidence to show that the deceased was the only person last seen with the appellant. The respondent at the trial therefore relied on circumstantial evidence especially the doctrine of last seen. This doctrine simply means that the law always presumes that the person last seen with the deceased is presumed to be responsible for his death, provided the circumstantial evidence is overwhelming and leads to no other person or persons but him. As it has been confirmed by the available evidence that the deceased was with the appellant up to the time of her death, then the doctrine of last seen obviously counts or applies against him. Moreso, there is a confessional statement voluntarily made by the appellant which supported the presumption of his guilt by the application of doctrine of last seen, as well as the evidence of PW2-PW5, all of which corroborated and supported his responsibility in causing the death of the deceased. See also Per Sanusi JSC in Kolade v. State (2017) LPELR-42362 (SC).
The appellant gave his own side of the testimony that he being an herbalist had to attend to the deceased brought to him by PW4 for treatment of stomach ache after an abortion. That when the deceased became weaker, he went to look for PW4 and after they arrived, the deceased died. That in fear, the matter was not reported to the police. Although he denied her murder, he gave evidence that the deceased died in his custody and he used cutlass to cut her body to pieces. The appellant’s confession indeed sealed his fate that he murdered her. It is settled law that an accused person can be convicted solely on his confessional statement. If a Court of law comes to the conclusion that a statement made by an accused person satisfies all the legal requirements of a confessional statement, then the charge against the accused must of necessity have been proved beyond reasonable doubt. The reason is simply that the Court can and does convict an accused person solely on his confessional statement. See Per Abba-Aji JSC inTope v. State (2019) LPELR-47837 (SC).
On the inadmissibility or lack of weight of exhibit D, the post mortem report, since the pathologist was not present to be cross-examined, the law is long settled on this. PW6 tendered exhibit D, which was all the same admitted in evidence amidst objection that the maker be called.
It must be emphasized that medical evidence is not always a desideratum in murder cases except where necessary to prove death and cause of death. Furthermore, to call the maker of the report is a matter of choice given by the law. A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without hearing medical evidence. It is also the law that for circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that the murder was committed by the accused. The fact that a medical report was not produced does not diminish that the fact that the deceased died. See Per Galumje JSC in Dajo v. State (2018) LPELR-45299 (SC).
Similarly, Section 55 of the Evidence Act 2011 deals with certificates of specified government officers. It provides in Section 55(1) and (2) as follows:-
55(1) Either party to the proceeding in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist, an Assistant Government Pharmacist, a Government Pathologist or Entomologist or the Accountant General, or any other pharmacist so specified by the Government Pharmacist of the Federation or of a State, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any accountant specified by the Accountant – General of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated therein. (2) Notwithstanding subsection (1) of the section, any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as a sufficient evidence of the facts stated in it. See Per Aka’ahs JSC in Abdullahi v. F.R.N (2016) LPELR-40101 (SC). To sum this point up, by the provisions of the Evidence Act, it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in Court in order to give evidence during the trial. Production by either party of a certificate signed by the medical officer may be taken as sufficient evidence of the facts. See Per Adekeye JSC, in Edoho v. State (2010) All FWLR (Pt. 530) 1262, (2010) 14 NWLR (Pt. 1214) 651, (2010) 6 SCM 52, (2010) 42 NSCQR (Pt. 1) 477, (2010) 4 SCNJ 100, (2010) LPELR-1015 (SC). In the present case, the death of the deceased has been fully connected to the appellant even in the absence of exhibit D. It is therefore not useful or weighty herein to be affect the case of the respondent.
The appellant has protested also that since PW6 did not testify that he was tendering exhibits K1, K2, E and E1, it was wrong for both the trial and lower Courts to extract confessional statements from them. It is always good for a party to present his case clearly to the understanding of the other party and not to spring surprise on the other. However, nothing forbids a Court from looking into its records to resolve an issue. See Per Okoro JSC, in Akeredolu v. Abraham & Ors (2018) LPELR-44067 (SC).
Although it not good to delve and descend into the arena of a case by a judge, the judge must dispassionately consider and determine every case by every fact available. Thus, a Court is entitled to look into any document in its record and make use of it in order to arrive at a just decision. When a document is in the record of the Court, it cannot be a new issue on which a judge is precluded from looking at. This Court has in a number of decided cases held that a Court of law is entitled to look into its record and make use of any document it considers relevant in determining issues before it. See Per Galumje JSC, in Eromosele v. FRN (2018) LPELR-43851 (SC). The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See Per Kekere-Ekun JSC, in PDP & Ors v. Ezeonwuka & Anor (2017) LPELR-42563 (SC).
Finally, it is trite law that this Court would rarely interfere with concurrent findings of facts by the two Courts below except where such concurrent findings of facts appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced, or in violation of some principle of law and procedure. In such circumstances, this Court would not allow such perverse findings to stand. See Per Okoro JSC inJohn v. State (2019) LPELR-46936 (SC).
The appellant has not swayed nor persuaded me to see any injustice or perversity in the concurrent findings of facts leading to his conviction and sentence by the two Courts below. The judgment of the lower Court is affirmed. The appeal is therefore dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I have had a preview of the leading judgment of my learned brother, Abba-Aji JSC. I entirely agree with the reasoning and conclusion. Accordingly, the appeal fails and it is hereby dismissed.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my lord, Abba-Aji JSC, just delivered now. I agree with his lordship that this appeal is unmeritorious and deserves to be dismissed. Now, although there was no eyewitness account as to the commission of the offence in question, the respondent led evidence to demonstrate that the appellant was the only person who was last seen with the deceased person. I agree with the leading judgment that the appellant’s confessional statement supported the presumption of his guilt by the application of the last seen doctrine. As this Court held in Iliyasu v. State (2015) LPELR-24403 (SC) 44 – 46; E-F, (Per Nweze JSC): “The last see doctrine, a doctrine of global application, Madu v. The State (2012) All FWLR (Pt. 641) 1416, (2012) 6 SC (Pt. 1) 80, (2012) 15 NWLR (Pt. 1324) 405, (2012) 6 SCNJ 129, (2012) 50 NSCQR 67, (2012) LPELR-7867(SC) 51-52, (2012) NCC 533, also, referred to as the last seen theory’, Rajashkhanna v. State of A.P (2006) 10 SCC 172, is applied in homicide cases in Nigeria, Rabi Ismail v. The State (2011) MJSC 20, 77. It creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death, Jua v. The State (2010) All FWLR (Pt. 521) 1427, (2010) 1 – 2 SC 96, (2010) 4 NWLR (Pt. 1184) 217, (2010) 2 MJSC 152, 186 – 187, (2010) LPELR-1637.
Thus, where an accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he (the accused person) killed the deceased person, Igabele v. State (2006) 6 NWLR (Pt. 975) 100; Obosi v. State (1965) NMLR 140; Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1, (1996) 2 SCNJ 47, 61-62; Gabriel v. State (1989) 5 NWLR (Pt. 122) 457,(1989) 12 SCNJ 33, (1989) 20 NSCC 111; Adeniji v.State (2001) FWLR (Pt. 57) 809, (2001) 13 NWLR (Pt. 730) 375, (2001) 5 SCNJ 379, (2001) 87 LRCN 1970, (2001) LPELR – 126; Madu v. The State (supra); Igho v. The State (1978) 3 SC 87, 254, (1978) 3 SC 61, 63.
In view of the said doctrine, therefore, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death. Surely, in the absence of such an explanation, a trial Court and even an appellate Court, will be justified in drawing the inference that the accused person killed the deceased, Igabele v. The State (supra); Obosi v. The State (supra); Adepetu v. The State (1998) 9 NWLR (Pt. 565) 185, (1998) 7 SCNJ 83, (1998) 61 LRCN 415; Adeniji v. The State (supra); Emeka v. The State (2001) All FWLR (Pt. 66) 682, (2001) 14 NWLR (Pt. 734) 666, 683, (2001) 6 SCNJ 259, (2001) 32 WRN 37; Uguru v. The State (2002) FWLR (Pt. 103) 330, (2002) 9 NWLR (Pt. 771) 90, (2002) 4 SC (Pt. II) 13, (2002) 4 SCNJ 282.
The doctrine has been held to be an exception to the watertight constitutional provision that a person is presumed innocent until proved guilty, Madu v. The State (supra) 84, A-D, citing Igho v. The State (1978) 35 SC 51, 62 – 63; Igabele v. State (supra); Nwaeze v. State (supra); Obosi v. State (supra); Uguru v. State (supra); The State v. Kalu (1993) 3 NWLR (Pt. 279) 20, (1993) 7 SCNJ 113, 124-125; Adepetu v. The State (supra); Rabi Ismail v. The State (2011) MJSC 28, 77.”
It is for these, and the more elaborate reasons in the leading judgment that I too shall enter an order dismissing the appeal. Appeal dismissed. I abide by the consequential orders in the leading judgment.
AMIRU SANUSI, J.S.C.: I was opportuned to read an advance copy of the lead judgment prepared by my learned brother, Uwani Musa Abba Aji JSC, just delivered. I am at one with her reasoning and conclusion arrived at.
I however wish to chip in a word or too especially on the doctrine of last seen and its application in our criminal law or jurisprudence.
The doctrine of last seen has for time immemorial been entrenched in our jurisprudence. The doctrine simply enjoins Court in criminal trial to draw inference that a person who was last seen alive with a person and was later found to have been killed or murdered was the murderer defending on the ascertained evidence as to the manner the deceased died. Where there is undisputed evidence as in this instant case as to how the deceased victim died, the trial Court is justified in applying the doctrine of last seen by inferring that he was the last person seen with the deceased person that killed him. See Mbang Efoli Mbang v. The State (2010) All FWLR (Pt. 508) 379, (2009) 18 NWLR (Pt. 1172) 140, (2009) LPELR-1852 (SC).
Thus, for these few remarks and for the detailed reasoning marshaled in the lead judgment which I am in agreement with, that this appeal lack merit. It is also dismissed by me for being lacking in merit.
Appeal dismissed.
EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered by my learned brother, Uwani Musa Abba-Aji JSC. The judgment, representing my views in the appeal, is hereby adopted by me.
Let me add, however, by way of emphasis that even without the medical report, exhibit D, it is not difficult to infer, from the totality of the evidence at the trial, the cause of death of the deceased. The appellant had admitted to the PW.4 that the deceased died while he was aborting her illegally. The PW.4 was not cross-examined on this damaging evidence. The PW.4 further testified, without challenge or cross-examination that he killed the deceased, and that the deceased was not previously sick. He not only showed, according to the PW.4, where he had buried the body of the deceased; he exhumed it. He recognized to the PW.4 the head of the deceased after admitting that he had cut off the said head of the deceased. It is obviously inferable that the person, who admitted that he killed the deceased, cut off her head (which he subsequently recognized) and buried the dead body without the head (which he also subsequently exhumed) is the person that caused her death.
The PW.5, the Investigating Police Officer, recorded the voluntary statements of the appellant – exhibits A and A1. The statements are quite inculpating and they are corroborated in material particular by the undiscredited direct evidence of the PW.4.
The PW.6 further corroborated the PW.4, PW.5 and exhibits A and A1. He testified, unscathed and undiscredited, that he recovered from the appellant the blood stained cutlass the appellant used in killing and decapitating the deceased. He further affirmed PW.4’s evidence that the appellant exhumed, in his presence, the body of the deceased and the severed head. PW.6 further testified, undiscredited, that the appellant, at the trial Court confessed in the open Court, that he killed the deceased; and that thereafter the confessional statement of the appellant, exhibit K1, was recorded.
The hue and fuss made by the appellant’s counsel that the trial Court dug into extra-judicial statement of the appellant to establish that the appellant made the incriminating confessions are completely mischievous and unnecessary. The evidence establishing the confession are overwhelming.
Even without the report of the pathologist in exhibit D, the cause of death of the deceased and the person who caused it illegally are facts not in any doubt. The empirical evidence points directly at the appellant and no other. The issue was settled beyond reasonable doubt – that it was the appellant and no other person who caused the death of the deceased.
The pathologist made exhibit D. The production of the same and putting it into the prosecution’s evidence could, under Section 55 (1) of Evidence Act, 2011, be done without the pathologist testifying himself.Sub-sections (2) & (3)thereof are unambiguous that “the production of any such certificate may be taken as sufficient evidence of the facts stated in it”. Sub section (3) of the said Section 55 enables the appellant, as the accused person, to apply to the Court to summon the pathologist “to give evidence before the Court for the purpose of cross-examination”.
The appellant did not apply to the trial Court to have the pathologist summoned to be cross-examined on his report in exhibit D. The defence having waived their right under Section 55(3) of the Evidence Act, it no longer lies in their mouth to complain that the production of exhibit D in evidence and the Court acting on it were prejudicial or did occasion miscarriage of justice to them.
I find no substance in this appeal as well. The appeal is hereby dismissed in its entirety. The concurrent judgments of the two Courts below are hereby affirmed. This appeal is, no doubt, an abuse of the right of appeal inuring to the appellant by virtue of Section 233 (2)(d) of the Constitution of the Federal Republic of Nigeria, as amended.
Appeal dismissed.
Appearances:
…For Appellant(s)
…For Respondent(s)
