ANTHONY THOMPSON EBONG & ANOR v. THE STATE
(2011)LCN/4761(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of July, 2011
CA/C/212/2009
RATIO
CAUSE OF DEATH: WHETHER THE FACT ALONE THAT A VICTIM OF AN UNLAWFUL ATTACK DIED ON THE SPOT CAN BE REGARDED AS ADEQUATE PROOF OF CAUSE OF DEATH
The law is settled, that where the victim of an unlawful attack died on the spot, consequent upon such an attack, that fact alone would be regarded as adequate proof of cause of death and who caused it. See Idrisu v. The State (1968) NMLR 88; Alarape v. The State (2001) 5 NWLR (Pt. 705) 79. PER MASSOUD ABDULRAHMAN OREDOLA, JCA
CAUSE OF DEATH: DUTY IMPOSED ON THE PROSECUTION TO PROVE THAT THE DEATH OF THE DECEASED WAS CAUSED DIRECTLY OR INDIRECTLY BY THE UNLAWFUL ACT OF THE ACCUSED PERSON
Regarding the cause of death, it is settled that the prosecution must prove that the death of the deceased was caused directly or indirectly, by the unlawful act of the accused person. The prosecution must establish not only that the said act of the accused person could have caused the death of the deceased, but that in actual fact it did and the deceased died as a result of the unlawful act, perpetrated by the accused person to the exclusion of all other likely possibilities. See Delu Liman v. The State (1976) 7 SC 61; Princewill v. The State (1994) 6 NWLR (Pt.353) 703. In Ajose v. The State (2002) 7 NWLR (Pt. 766) 302/311, Tobi, JCA (as he then was) stated: “In a case of murder, it is incumbent on the prosecution to prove the cause of death, and unless the cause of death is positively proved. either by direct evidence or circumstantial evidence, the prosecution cannot obtain a conviction. To establish a charge of murder, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it did.” PER MASSOUD ABDULRAHMAN OREDOLA, JCA
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROVING THE CAUSE OF DEATH OF THE ACCUSED; THE ESSENCE OF THE CHAIN OF CAUSATION BEING INTACT IN FIXING CRIMINAL RESPONDENT ON THE ACCUSED PERSON
… the law is firmly rooted that the onus of proving the cause of the death rests squarely on the prosecution and not the defence. Thus, in order to concretely, strictly and stringently fixed on the accused person with criminal responsibility in a murder case, the chain of causation must be intact and not broken. Once it snaps and a broken link exists in the chain of causation, the benefit of the doubt raised thereby must be given and resolved in favour of the accused person, as it affects the essential ingredient of cause of death”. This is more so, because there is likelihood of more than one possible cause of death. PER MASSOUD ABDULRAHMAN OREDOLA, JCA
CAUSE OF DEATH: WHETHER MEDICAL EVIDENCE IS THE ONLY WAY OF ESTABLISHING THE DEATH OF THE ACCUSED
The law is also settled that in as much as medical evidence is desirable to establish the cause of death in a case of murder, it is not a sine qua non. It has been stated in a plethora of cases, that cause of death can be established by sufficient evidence which shows beyond reasonable doubt that death resulted from the particular unlawful act of the accused person or the manner of death of the deceased. This fact can be properly inferred from the evidence adduced and the circumstances of the case. see Azu v. The state (1993) 6 NWLR (Pt. 299) 303; Akpuenya v. The State (1976) 11 SC 269; Ilori v. The State (1980) 8 – 11 SC 81; Eric Uyo v. Attorney – General Bendel State (supra) Idemudia v. The State (1999) 7 NWLR (Pt. 610) 202 PER MASSOUD ABDULRAHMAN OREDOLA, JCA
MEDICAL EVIDENCE: POSITION OF THE LAW ON THE CONTENT OF THE MEDICAL EVIDENCE RELIED UPON BY THE COURT IN ESTABLISHING THE CAUSE OF DEATH OF THE DECEASED
…where as in the instant case, the court relied on medical evidence to establish the cause of death of the deceased, such medical evidence must clearly show that the injury or injuries inflicted on the deceased by the unlawful act of the accused persons, caused the death without any intervening or supervening cause or causes which culminated or contributed to the death of the deceased. Thus, where there is the possibility or strong likelihood that the cause of death could be attributed to cause or causes other than the actual injury inflicted, some doubt has been raised on the proper and actual cause of death and the benefit of such doubt must be resolved in favour of the accused person. see Oforlete v. The state (2000) 12 NWLR (Pt. 681) 415. PER MASSOUD ABDULRAHMAN OREDOLA, JCA
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILUJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
Between
1. ANTHONY THOMPSON EBONG
2. UWEM THOMPSON EBONGAppellant(s)
AND
THE STATERespondent(s)
MASSOUD ABDULRAHMAN OREDOLA, JCA (Delivering the Leading Judgment): The appellants, Anthony Thompson Ebong and Uwem Thompson Ebong as accused persons, were tried and convicted on a one count charge of murder by Udoma, J. sitting at Itu Judicial Division of the High court, Akwa Ibom state. The judgment in question was delivered on 29th July, 2009. The statement and particulars of the one count charge read as follows:
“STATEMENT OF OFFENCE
MURDER, contrary to Section 926 of the Criminal Code Cap 38 Vol. II, Laws of Akwa Ibom State.
PARTICULARS OF OFFENCE
ANTHONY THOMPSON EBONG and -UWEM
THOMPSON EBONG on the 1sth day of January, 2006 at No. 17 Udo Inyang Street, Ikot Abasi Itam, in Itu Judicial Division did cause the death of one Sgt. David Edet Antai.”
On 8th November, 2006 the two accused persons pleaded not guilty to the charge. It is to be noted that on 23rd March, 2009 the charge was amended to read, “at No. 7 Udo Inyang Street”, instead of “at No. 17 Udo Inyang Street”: The pleas of the two accused persons were taken afresh and the accused persons, individually still pleaded not guilty.
In proof of its case, the prosecution fielded four witnesses and also tendered six exhibits. The two accused persons also testified in their respective defence and tendered one exhibit through PW2, during cross examination at the trial. In this case, the facts as contained in the record of appeal are as follows. The accused persons are brothers. The 1st accused owns a house situate at No. 7 Udo Inyang Street, Ikot Abasi, Itam, Itu Local Government Area, Akwa Ibom state. one sgt. David Edet Antai, a policeman lived with other tenants in the said house. Sgt. David has been assigned the responsibility of collecting money for payment of electricity bill from tenants in the house and handing the amount collected to the 1st accused person. In the morning, on 15th January, 2006, a quarrel ensued between the 1st accused and Sgt, David over the collection of money. for settlement of electricity bill. Later in the day, the fracas began again, escalated and exploded into a fight which involved the two accused persons and sgt. David. According to the prosecution, sgt. David was beaten black and blue and was seriously injured during the fight. It was further alleged that the 1st accused person hit sgt. David on the head with a stone. The 1st accused person vehemently denied the allegation. According to him, Sgt. David fell and hit his head during the struggle/fight. While Pw2, Mayen David Antai, wife of sgt. David witnessed the hot exchanges which took place in the morning, it was Pw3, christiana David Antai, daughter of sgt. David who was said to be the sole witness to the altercation which took place later in the day. It was further stated that Sgt. David received medical treatment at University of Uyo Medical centre and Silver Medical Centre, Itam, a private medical establishment. Alas, on 17th January, 2006, Sgt. David died while receiving treatment at the said Silver Medical Centre, Itam.
The two accused persons were arrested and later released on the strength of legal advice received by the police, from the Director of Public Prosecutions, Ministry of Justice, Akwa Ibom State. The case file was sent for the second time to the Attorney-General and Commissioner of Justice, Akwa Ibom State, who recommended that the accused persons should be prosecuted. They were re-arrested and charged with the offence of murder of Sgt. David Edet Antai. The Hon. Justice Margaret E. Udoma in the concluding paragraphs of his judgment at pages 82 and 83 of the record of appeal said:
“A close look at the evidence of PW3 the only eye witness the deceased’s daughter as confirmed by the 2 accused person in the light of the evidence of the PW4 the Medical doctor as well as that of the DW1 and DW2 i.e, the 1st and 2nd accused Persons and the circumstances of this case show that the evidence of PW3 is true and is capable of belief.
On the whole the conclusions I have come to as held in the case of Nwaeze vs. The State (supra) the 3 general factors have been established viz:
(1) That the deceased died
(2) That the death of the deceased was caused by the 2 accused persons whose act was unlawful and
(3) That the act or omission of the 2 accused persons which caused the death of the deceased was intentional with the knowledge that death or generous (sic) bodily harm was its probable consequence and the prosecution has proved the Charge of murder against the 2 accused persons beyond reasonable doubt. I find the 2 accused persons guilty as charged and they are hereby sentenced to death”.
Aggrieved by this decision, the accused persons have separately appealed to this Court, vide their respective notices of appeal which contained seven grounds of appeal. It was filed with leave granted by this court. Henceforth in this judgment, the two accused persons will be referred to as the appellants, while the prosecution will be referred to as the respondent. The parties duly filed and exchanged briefs of argument. Appellants, brief was filed on 8th December, 2010.
It was prepared by Francis Ekanem Esq. Three issues were identified in the said brief for the determination of this appeal. They are:
“1. Whether or not the prosecution had established the ingredients of murder at the trial of the Appellants to enable it secure the conviction of the Appellants for the offence of murder as charged.
2. Whether or not the learned trial judge properly evaluated and considered the evidence adduce d at the trial.
3. Whether or not the Learned trial Judge was right in convicting the Accused persons of the offence of murder and sentencing them to death.”
Respondent’s brief of argument was filed with leave of this court granted on 11th May, 2011. It was prepared by Harrison Ataide Esq., learned Director of public prosecutions, Ministry of Justice, Uyo, Akwa Ibom stale. Two issues were formulated therein. The issues so formulated in the respondent’s brief which will be used for the determination of this appeal subsumed the ones formulated in the appellant’s brief and are as follows:
“1. whether the prosecution had established the ingredients of murder at the trial of the Appellants to enable it secure their conviction for the offence of murder as charged.
2. Whether the Learned Trial Judge properly evaluated and considered the evidence adduced at the trial of the Appellant and thereby rightly convicted them as charged.”
The appeal was heard by this court on 11th May, 2011. At the hearing, learned counsel who appeared for the appellants, Nkereuwern Udofia Esq. adopted and relied on the appellants’ brief.
He urged us to allow the appeal, set aside the judgment of the lower court and enter a verdict of discharge and acquittal for the appellants. Chief Harrison Ataide, the learned Director of public Prosecutions, Ministry of Justice, Akwa Ibom state, who appeared for the respondent, similarly adopted and relied on the respondent’s brief. He also urged us to dismiss the appeal.
On the first issue, learned counsel for the appellants referred to the established ingredients required to be proved by the respondent in order to secure conviction in a charge of murder, He cited the supreme court case of Ubani v. The state (2004) 115 LRCN 3143/3145 where the ingredients are listed. Reference was also made to Michael v. The state (2009) 162 LRCN 129/132 on the same point. He conceded on the first ingredient of murder that the death of the deceased has been established.
However, on the second ingredient it was disputed, that it was the unlawful acts of the appellants which caused the death of the deceased. Reference was made to the evidence of pw2, Mayen David Antai, wife of the deceased and pw3, christiana David Antai, daughter of the deceased to the effect that in the morning of 15th January, 2006, there was a quarrel between the deceased and the 1st appellant. Later in the day it became a full blown fight with the appellants and the deceased as combatants. Appellants, counsel noted that the deceased did not die on the spot or on the day the incident took place. He added that for two days, “the deceased left the scene of the fight and went about from the 15th to 17th of January, 2006.” That during this period, the deceased attended two hospitals, namely, University of Uyo Medical centre and silver Medical centre, Itam. It was his argument that the respondent failed to bring evidence to show the kind of treatment which the deceased received, medication administered and the effect of such treatment/medication on the deceased from the two hospitals which he attended. Learned appellants’ counsel referred to Tegwonor v. The state (2008) 1 NWLR (pt. 1069) 630/653; Audu v. The State (2003) 7 NWLR (pt. 820) 516/553-554, with the submission that, “this situation create a very strong doubt as to the cause of death of the deceased.” Further reference was made to Udosen v. The state (2007) 4 NWLR (pt. 1023) 125/134 -135 and Olayinka v. The State (2007) 9 NWLR (pt. 1040) 561/569.
Learned counsel for the appellants also pointed out that Pw3 and the appellants confirmed that the fight took place on 15th January, 2006 and the deceased died on 17th January, 2006. It was then argued that Exhibit F the autopsy report “did not help matters” since the said Exhibit F, “states the date of receipt of the corpse to be the 15th January, 2006.” Reliance was placed on Idemudia v. The State (1999) 69 LRCN 1043 with the argument that Exhibit F, “does not concern the corpse of late Sgt. David Edet Antai.”
On this, the learned counsel for the appellants maintained that the learned trial judge failed to properly evaluate the evidence adduced by both the respondent and the appellants. It was contended that, “if the evidence had been properly evaluated the Learned trial judge would not have convicted the Appellants of the offence of murder and would not have sentenced them to death.” He referred to page 32 of the record of appeal and pointed out that, PW3 in her testimony stated that during the fight which took place between the appellants and the deceased; the 1st appellant picked a stone and hit the deceased on the head and the latter bled. It was appellants’ counsel contention, that the trial Judge while reviewing this piece of evidence at page 79 of the record, stated that “PW3 stated in her testimony in Court that 1s accused person used a stone Exhibit E to hit the deceased several times.” Counsel submitted that since PW3 did not say that the 1st Appellant “hit the deceased with a stone several times”, that the words “several times” operated in the mind of the learned trial judge and convinced him to convict the appellants. He cited Michael v. The state (2008) 162 LRCN 129/133 and Uwagboe v. The State (2007) 6 NWLR (pt. 1031) 606/610 with the submission that in a charge of murder, the nature of the weapon used, how it was used, its weight and size are essential factors in determining whether or not to convict and for which offence.
Appellants’ counsel also posited and with reliance being placed on Ochemaje v. The State (2008) 15 NWLR (pt. 1109) 57/61, that though the fact of being deceased’s daughter does not render the testimony of PW3 inadmissible, “it must however be treated with caution having regard to the relationship.” Additionally, “that the contradictions and inconsistencies which were highlighted and given prominence by the learned trial Judge and which weighed heavily on his mind were immaterial to the main case of the Accused/Appellants … are not material or substantial, go to no issues.”
Learned counsel for the appellants equally contended that the learned trial judge did not give consideration to defences such as provocation and self defence which are availing for the appellants in the given circumstances of this case. He called in aid for the point being made, the cases of Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561/566 and Ariku v. The state (2010) 9 NWLR (pt.1199) 241/253.
Learned counsel for the respondent in his response to the submissions made above reiterated the established principle in criminal cases that the burden of proof is on the prosecution to establish the necessary ingredients of the offence charged as required by law, that is beyond reasonable doubt. He also cited in support, the cases of Ubani v. The state (supra) and Michael v. The State (supra) and a host of other cases. Learned counsel for the respondent argued that in the instant case, the respondent “established and proved all the ingredients necessary to prove the guilt of the Appellants for the offence of murder as charge.” That the respondent has effectively discharged the onus of proof placed on it. In this regard, he referred to the evidence of pw3 where she stated that after the appellants beat up the deceased, that “the 1st accused person picked a stone from the ground and hit my father on the head,. My father started bleeding…” According to the learned DPP, “this concrete and credible evidence was never challenged, contradicted or controverted throughout the trial of the Appellants.” He submitted that a court must give effect to such unchallenged evidence and “in the instant case, the trial court believed this unchallenged testimony of pw3.” counsel added, “that this particular kernel of evidence established the cause of death of the deceased,” who died two days after, “the two appellants jointly beat’, him, while the 1st appellant picked a stone and hit the deceased on the head. It was further argued by learned respondent’s counsel that the oral testimony of PW4, Dr. Nkopuduk Etuk, the medical doctor who performed the autopsy on the corpse of the deceased and the medical report, “are explicit on the cause of death of the deceased.”
According to the learned DPP, there was no doubt as to the cause of death of the deceased.
Learned respondent’s counsel countered the argument by appellants’ counsel which pertained to failure by the respondent “to bring medical evidence to show what the deceased was treated for, what medication was administered on him and the effect of such medication as misplaced and uncalled for.” He added, that this is not an ingredient which the prosecution has to establish in a charge of murder. Furthermore, that the appellants, “failed to show how this relate to proof of guilt in this case which has been established by cogent and positive evidence of the prosecution witnesses.”
Regarding the dates recorded on Exhibit F, learned counsel for the respondent submitted, “that the mix up arose from typographical errors” and that the trial court rightly acted on it, “notwithstanding the typographical errors on the face of Exhibit F. He argued that, “the oral testimony on oath by PW4, the medical doctor who performed the autopsy on the corpse of the deceased is that he conducted the same within 24 hours from the day the corpse was received in the mortuary and this piece of evidence given under cross-examination by PW4 was not challenged or controverted throughout the trial at the court below.” Hence, according to the learned DPP, it is too late in time and at this stage for the appellants to be heard complaining.
He place reliance on Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444 and Asafa Foods Factory Ltd. v. Alraine (Nig.) Ltd. (2002) 12 NWLR (Pt. 781) 353 where it was held that it is always open to the court seised of the matter to act on such unchallenged evidence placed before it.
Learned respondent’s counsel pointed out that the learned trial judge in his review of the testimony of pw3, correctly captured what she said, to the effect that when 1st appellant used Exhibit E, the stone to hit her father, the deceased on the head, “with force blood came out.” According to the learned counsel, the learned trial judge in his consideration of this piece of evidence, “mistakenly replaced the words “with force,, with the words “several times”. Counsel further submitted that, “hitting of the deceased head with stone “several times” does not carry much weight as “hitting the deceased’s head with stone with force.” Additionally; that “it is the ferocity … that operated on the mind of the court and not the number of times.” counsel then submitted, that “this mistake is curable by this Honourable court by the application of the slip rule.”
Learned respondent’s counsel also contended that the learned trial judge treated the evidence of pw3 which was “credible, positive, direct and cogent and in fact uncontroverted,” with deserving caution. It was submitted, “that the learned trial judge gave reasons for believing the evidence of pw3” and also “gave adequate consideration to the totality of evidence before arriving at his conclusion and conviction of the appellants as required by law.” He cited the cases of Okobi v. The State (1984) 7 SC 47; Omisade & ors, v. The Queen (1964) NMLR 67 among other cases in support of the point being made: Also, citing Okobi (supra); Nteogwuile v. Otuo (2001) 16 NWLR (pt. 738) 58; Ben v. State (2006) 16 NWLR (Pt. 1006) 582, we were urged not to disturb the finding of facts made by the learned trial judge who saw and heard the witnesses unless “such findings are perverse and not justified by evidence.” On the arguments regarding availing defences, learned counsel for the respondent maintained that the learned trial judge rightly held that the defence of provocation does not avail the appellants. He cited the case of Uwagboe (supra) on the issue of proportionate repelling force for the success of the defence of provocation. He added, that the appellants having denied that they committed the offence as charged, the offence of self defence was not available to them, more so, when the threat from the deceased, “was not existent as can be seen from the totality of the evidence on record at the trial of the appellants.” Similar arguments were canvassed in respect of the defence of accident. It was contended that the acts of the appellants were deliberate and not accidental. He concluded by stating that, “none of the defences availed the appellants in this case and the trial court rightly held so.”
There is a consensus between the learned counsel for the parties on the essential ingredients of murder, which must be proved beyond reasonable doubt by the respondent. Both counsel referred to Ubani (supra) and Michael (supra) and other authorities. They put the ingredients as follows:
“(1) That the deceased had died
(2) That the death of the deceased was caused by the accused and
(3) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.”
The learned trial judge in the judgment of the court referred to the cases of Dunwode v. The State (2000) 4 NSQLR 33; Nwaeze v. The State (1996) 2 SCNJ and Abogede v. The State (1996) 37 LRCN 674 and put the ingredients of murder in somewhat similar manner as follows:
“(1) Death of deceased person
(2) That the death of the deceased person was caused by the accused person whose act was unlawful
(3) That the act or omission of the accused person which caused the death was intentional with knowledge that death or grievous bodily harm was its probable consequence.”
I am in full agreement with them on this and accordingly endorse the ingredients of the offence with which the appellants were jointly charged as stated above.
The Supreme Court in Edet Offiong Ekpe v. The State (1994) 9 NWLR (Pt. 368) 263, (1994) 12 SCNJ 131, held that an appellant who asserts that the prosecution has failed to prove his guilt beyond reasonable doubt before his conviction, has the duty to establish that it is so. It will then be the duty of an appellate court to examine the assertion against the whole background of the case and most particularly against the evidence leading to the finding of guilt of the appellant. In the instant case, the learned trial judge at page 77 of the record of appeal also found that the first ingredient of the offence of murder has been proved by the respondent against the appellants.
His words:
“Death of the deceased person: The charge against the 2 accused persons is for the murder of Sgt. David Edet Antai (male) on the 17th day of January, 2006 at No. 7 Udo Inyang Street, Ikot Abasi Itam, Itu. PW1, PW2, PW3 and PW4, DW1 and DW2 testified that the deceased died and his corpse was deposited at the mortuary. There is no doubt and indeed both the prosecution and the 2 accused persons agree that the deceased person Sgt. David Edet Antai died on the 17th day of January 2006. I therefore hold that the 1st element of the offence of murder has been proved by the prosecution.” (Emphasis added)
The appellants have no complaint with regard to this finding. Now to the second ingredient over which the parties herein are sharply divided. In Ahmed v. The State (2001) 18 NWLR (pt.746) 622, the supreme court held that the primary enquiry into the cause of death of a person is an enquiry into the biological cause of death.
The question at that stage is, what caused the death and not who caused the death? Thus, in a charge of murder, if the cause of death has not been proved or remained indeterminable, it is futile and unnecessary to proceed to consider whether it was the accused person who caused the death of the victim of an attack. Indeed, it is after the cause of death of the deceased has been established or ascertained, that the issue of who and which act of the accused person was responsible or closely connected with the act which resulted in the death of the victim would have to be determined, This is more so, because in a charge of murder, it is incumbent on the prosecution, in order to firmly establish the criminal culpability of an accused person that the causa causans or chain of causation, must not snap or be broken. Once there is a break in the chain or link, it is incapable of being welded together again and whatever doubt which has been generated by the said break, must be resolved in favour of the accused as it affects the actus reus of the offence charged. Thus, it is to be noted that, where there is more than one possible cause of death, in terms of occurrence of an intervening circumstances, the benefit of the doubt so raised must be resolved in favour of the accused person, since the available evidence in the given situation will fall, short of the required standard in order to distinctly and without distraction or deviation whatsoever, pin the accused down with culpability for the death of the deceased. see Uyo v. Attorney – General , Bendel state (1986) 1 NWLR (pt.17) 418; Oguntolu v. The state (1996) 2 NWLR (pt. 432) 503; Idowu v. The State (2000) 12 NWLR (pt. 680) 48.
In the instant case, the injuries or wounds suffered or sustained by the deceased during the fight or beating which involved the appellants herein did not result in the deceased, dropping dead or dying on the spot. Rather, the, deceased went to two hospitals for treatment. Howbeit, no evidence was placed before the trial court with regard to what transpired at the said hospitals and the type of treatment received or medication administered. The deceased was also seen moving in and out of the premises under one condition or the other and died two days after the altercation in question. The poser then still remains; whether it was the initial injuries allegedly sustained during the fight which took place on 15th January, 2006 or there were intervening cum supervening developments which occurred between that date, that is 15th and 17th January 2006, which became fatal and resulted in the death of the deceased on the date it eventually occurred.
The law is settled, that where the victim of an unlawful attack died on the spot, consequent upon such an attack, that fact alone would be regarded as adequate proof of cause of death and who caused it. See Idrisu v. The State (1968) NMLR 88; Alarape v. The State (2001) 5 NWLR (Pt. 705) 79. Regarding the cause of death, it is settled that the prosecution must prove that the death of the deceased was caused directly or indirectly, by the unlawful act of the accused person. The prosecution must establish not only that the said act of the accused person could have caused the death of the deceased, but that in actual fact it did and the deceased died as a result of the unlawful act, perpetrated by the accused person to the exclusion of all other likely possibilities. See Delu Liman v. The State (1976) 7 SC 61; Princewill v. The State (1994) 6 NWLR (Pt.353) 703. In Ajose v. The State (2002) 7 NWLR (Pt. 766) 302/311, Tobi, JCA (as he then was) stated:
“In a case of murder, it is incumbent on the prosecution to prove the cause of death, and unless the cause of death is positively proved. either by direct evidence or circumstantial evidence, the prosecution cannot obtain a conviction. To establish a charge of murder, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it did.”
It is noteworthy and emphatically too, that it is not for the accused person to suggest, let alone prove an alternative cause of death. See onyenankeya v. The state (1964) 1 All NLR 151, (1964) NMLR 34. This is more so, because the failure of the defence to do so, does not in anyway confirm or establish the case for the prosecution. Again, in determining the cause of death, the duration between the alleged act of the accused person which caused the death of the deceased and the death is important. In this vein, an accused person could be found guilty of the offence of murder or manslaughter, where the duration is long, in so far as the court comes to the correct conclusion, that the act of the accused caused the death of the deceased. Thus, a conviction and sentence on this score will be proper in law conversely, where the period between the alleged unlawful act of the accused and the death of the deceased are proximate, a court can still not find the accused guilty, if it is established that there are more than one possible cause of death. what is essential is that there must be evidence that the act of the accused resulted in the death of the deceased. See Aiguoreghian v. The State (2004) 3 NWLR (pt. 860) 367. Additionally, where the deceased did not die on the spot, in order to arrive at a safe cause of death, there must be a vivid description of the injury or injuries in respect of which the deceased received treatment if any, the condition in which he was taken to the hospital, the hospital officials inclusive of the doctor or nurse who attended to and or treated him and his last moments on earth – how it came about.
In the instant case, the deceased went to two hospitals. There was no evidence as to his condition and the medical attention or treatment which was given to him. There was also no explanation whatsoever from the respondent as to why in the course of investigation into this case, no attempt was made to verify and adduce evidence with regard to what type of treatment the deceased received at the two hospitals and more particularly at the silver Medical center Itam, where he died. This would have enabled the respondent to dispel any notion or suggestion of mistreatment if any, in view of the intervening two days between the fracas and demise of the deceased. There has been an actus novus interveniens which must be accounted for by the respondent herein. At least, the trial court would have been in a better position to determine what actually caused the death of the deceased. In order to successfully do this, there must be evidence of the type of attention and treatment given by each of the hospitals which the deceased attended. Put differently, there must be evidence of what took place in the two hospitals. Where this is lacking, there is likely to be a break in the chain of causation, thereby allowing doubt to creep in. See Aiguoreghian (supra).
Let me reiterate, that the law is firmly rooted that the onus of proving the cause of the death rests squarely on the prosecution and not the defence. Thus, in order to concretely, strictly and stringently fixed on the accused person with criminal responsibility in a murder case, the chain of causation must be intact and not broken. Once it snaps and a broken link exists in the chain of causation, the benefit of the doubt raised thereby must be given and resolved in favour of the accused person, as it affects the essential ingredient of cause of death”. This is more so, because there is likelihood of more than one possible cause of death.
The law is also settled that in as much as medical evidence is desirable to establish the cause of death in a case of murder, it is not a sine qua non. It has been stated in a plethora of cases, that cause of death can be established by sufficient evidence which shows beyond reasonable doubt that death resulted from the particular unlawful act of the accused person or the manner of death of the deceased. This fact can be properly inferred from the evidence adduced and the circumstances of the case. see Azu v. The state (1993) 6 NWLR (Pt. 299) 303; Akpuenya v. The State (1976) 11 SC 269; Ilori v. The State (1980) 8 – 11 SC 81; Eric Uyo v. Attorney – General Bendel State (supra) Idemudia v. The State (1999) 7 NWLR (Pt. 610) 202
Howbeit, where as in the instant case, the court relied on medical evidence to establish the cause of death of the deceased, such medical evidence must clearly show that the injury or injuries inflicted on the deceased by the unlawful act of the accused persons, caused the death without any intervening or supervening cause or causes which culminated or contributed to the death of the deceased. Thus, where there is the possibility or strong likelihood that the cause of death could be attributed to cause or causes other than the actual injury inflicted, some doubt has been raised on the proper and actual cause of death and the benefit of such doubt must be resolved in favour of the accused person. see Oforlete v. The state (2000) 12 NWLR (Pt. 681) 415.
Now, in the instant case, the learned trial judge placed heavy reliance on Exhibit F, the medical report and testimony of PW4, the medical doctor who conducted the post mortem examination. It is pertinent to observe that there was evidence on record that the deceased attended two different hospitals within the span of two days for medical attention with regard to the injury allegedly sustained during the fight which took place and involved the appellants and the deceased. The question that remained unresolved or unanswered included; what was the nature of injury sustained and the type of treatment that was given/received and by whom was it administered. Also, whether the injury was life threatening or otherwise. PW4, Dr. Etuk in his testimony and while under cross – examination, inter alia said:
“I received the deceased’s corpse in the hospital. I did not know where it came from. From the autopsy I could not tell whether the deceased receive treatment anywhere else before he was brought to University of Uyo Teaching Hospital (UUTH). I knew the term mistreatment in medicine, it arises from misdiagnoses i.e. if a patient comes to a doctor, and a doctor misdiagnoses it is mistreatment. I do not know whether the deceased received treatment somewhere else before he was brought to University Teaching Hospital and I can not say anything to that effect.”
One significant aspect of this case, is that both Exhibit F and the testimony of PW4 stated clearly that the corpse was sent to and received at the mortuary on 15th January, 2006 and the post mortem examination was conducted on 16th January, 2006, within twenty – four hours from the time the corpse was deposited at the hospital’s mortuary. The dilemma here is that there is no dispute whatsoever that the deceased who was engaged in a fight with the appellants died on 17th January,2006. The learned trial judge also found this fact as having been established. Hence, the lingering doubt that refuses to go away. Which corpse are we talking about? That of a man who was alive on 15th and 16th January, 2006 or another deceased person? Definitely, something grave or ominous is amiss somewhere and it is more than a mere mix up as a result of typographical error as the learned counsel for the respondent argued and tried to persuade us to tag along with him. It is a more serious development which borders on an essential ingredient of the offence with which the appellants were charged.
The principle has been well laid down, that the identity of the corpse examined by a medical doctor must be satisfactorily established. put differently, there must be proof of the identity of the corpse on which the medical doctor performed post mortem examination, to be that of the deceased whose death was allegedly caused by the unlawful act of the accused person. In Amayo v. The state (2001) 18 NWLR (pt. 745) 251/279 the Supreme Court emphasized thus:
“There is no doubt that where medical evidence is necessary, it is important to be certain to be of the identity of the corpse presented for autopsy. This is an aspect of the duty prosecution to prove its case beyond reasonable doubt. If therefore, there is reasonable doubt as to the identity of the corpse upon which the doctor performed the autopsy, the prosecution’s case fails. The reason for such certainty is to obviate any possible mistake of an autopsy being conducted on the wrong corpse which would produce unrelated and irrelevant cause of death to the corpse in question in the homicide case being tried. See R. v. Laoye (1940) 6 WACA 6.”
On Exhibit F and testimony of Pw4 thereon and the attendant confusion therein, which learned counsel for the respondent referred to as a “mix up which arose from typographical errors” it was his submission that, “it is too late in time and in accordance with procedure for the appellants to complain at this stage.” Furthermore, “that notwithstanding the typographical errors on Exhibit F”, that the trial court, “rightly acted on this piece of evidence by Pw4 as … true and accepted evidence before it.” He cited in support, the cases of Okoebor v. Police Council (supra) Asafa Foods Factory v. Alraine (Nig.) Ltd. (supra) where the supreme court restated the position of the law, that where evidence is led by a party and there is no contrary evidence from the other party, the evidence is deemed to be true and accepted. However, there is a caveat. Where the evidence is patently incredible or unreliabre, such evidence ought not to be reqarded as proof of the issue in contention, because it harbours an obvious untruth. This is regardless of whether or not a challenge was forthcoming from the accused person or adverse party.
To my mind, it will not be safe to condemn and send two men to the gallows on the strength of an autopsy report, which contains deficiency or inaccuracy that has been described by the prosecution as a mix up which arose from typographical errors on a document that was clearly handwritten. The date on Exhibit F was not typed, It was handwritten twice, thus: “15-1-2006″ and 15th January 2006”.
Both times, it referred to the approximate date of death of the deceased, whose post mortem examination report has been entered therein. Additionally, PW4 while under cross examination, clearly stated that he “conducted the post mortem on 16/1/06 a period of about 24 hours from the day he was received in the mortuary.” It will amount to irreversible damnifying error, if in the absence of evidence by the respondent, explaining why and how the mix up if any, arose in this case, such a report is regarded as being satisfactory. Anything which is outside admissible, cogent, concrete and credible evidence in this regard will run foul of the requirement of the law. It is settled, that submission of counsel, no matter the brilliance or ingenuity displayed is but a poor substitute for legally admissible evidence.
This is a case, where one life has already been lost and two are on the line in mortar dread on death row, awaiting the hangman’s noose. In this vein, there is a dire need for certainty and removal of any vestige of doubt. There is the high demand for certainty and making assurance doubly sure, without leaving anything to uncertainty of whatever sort or degree. Indeed, the fact and concession by the respondent that there was a mix up which pertained to Exhibit F are proof enough that he said Exhibit F, has become tainted with doubt or uncertainty and it would be unsafe to predicate conviction of the appellants thereon, as the benefit of whatever doubt that exists must be resolved in their favour.
The law by a plethora of cases is settled, that medical evidence being an opinion of an expert made admissible by statute and by its very nature, must of necessity be specific, strong, concrete and compelling in the light of the content thereof and facts adduced as evidence thereon by the prosecution in a particular case, It must not be confusing, nebulous, unsatisfactory and unconvincing. Thus, a deficient medical evidence or report cannot assist the prosecution in proving its case beyond reasonable doubt. See Okafor v. The State (1990) 1 NWLR (Pt.128) 614. Required and reliable medical report cum evidence must unequivocally establish the death of the deceased; the date, the cause of death and provide the necessary link between the death of the deceased and the unlawful act of the accused person. See Onwumere v. The State (1991) 4 NWLR (Pt. 186) 428. Indeed, where medical evidence is available, it must be conclusive and not otherwise.
In the instant case, learned counsel for the appellants attacked or challenged Exhibit F from many fronts and pointed out inconsistencies therein. According to him, it is unreliable vis-‘a-vis the date of death of the deceased and the receipt of his corpse at the mortuary which was stated thereon to be 15th January, 2006 for a man who died on 17th January,2006. I agree. In my view, Exhibit F did a lot of damage and self destruct to the case of the respondent herein. In Oforlete v. The State (supra) it was held that where medical report or evidence is unsatisfactory, it is unsafe to act on it. Again, and regarding Exhibit F, even if it is a mistake, mix up or whatever, just like the case of contradictions and inconsistencies in the case of prosecution witnesses, there must be evidence on record to explain or rationalize how it happened and why this particular sort of mix up came about in the first instance. It is not enough and does not behove either the respondent’s counsel to submit/supply the missing component in his final address/brief or the learned trial judge to provide the missing link in his judgment. It can further be likened to the court raising a crucial or decisive issue suo motu. Parties must be heard thereon. In the instant case, even though there is no dispute about the death of the deceased, there is one regarding the cause of his death and Exhibit F only succeeded in making confusion worse confounded. It worsened the situation. One is left in a quandary as to what is believable or unbelievable in respect thereof, Exhibit F is a crucial piece of evidence in this case. The law is settled that where such crucial evidence in a criminal proceeding is overlooked, misunderstood or wrongly applied, it is likely to lead to miscarriage of justice. This is because the appellate court, in considering a complaint by the appellant against the judgment reached on that basis by the trial court, may be unable to say what the decision would have been, if the trial court had given proper consideration to such evidence or discarded it completely. That will then create a reasonable doubt as to whether the decision is correct and the benefit of the doubt ought to be resolved in favour of the appellant. see Lado v. The state (1999) 9 NWLR (pt. 619) 369. On the need for a somewhat high degree of certainty with regard to cause of death it has been observed and on a sound basis too, that it is not unknown or unlikery that an apparently healthy person may suddenly collapse and die. see Ahmed v. The state (2001) 18 NWLR (Pt.746) 622/649.
In view of the conflict, discrepancy and inconsistency regarding the accuracy of data/contents of Exhibit F and established facts in the instant case, the said Exhibit F cannot be connected with the deceased with whom the appellants had an altercation. Hence, Exhibit F, the medical report of the autopsy conducted in this case should have been rejected, with the testimony of pw4 thereon. Both were wrongly relied upon by the trial court. It follows therefore, that the second ingredient in a charge of murder, that is, proof of cause of death of the deceased remained unestablished in the instant case.
The second issue concerned whether the trial court properly appraised and evaluated the evidence adduced before it and thereby rightly convicted the appellants as charged. A perusal of the record of appeal will disclose that pw3, daughter of the deceased in her evidence-in-chief interalia said:
“…the 1st accused person picked a stone from the ground and hit my father on the head. My father started bleeding…”
However, while under cross examination she said:
“when the 1st accused person used Exhibit E to hit my father blood came out. 1st accused hit my father with force with Exhibit E. I cannot find blood stains on Exhibit E.”
The pieces of evidence adduced above by pw3 were reviewed by the learned trial judge in his judgment as follows:
“She said that when the 1st accused used Exhibit E to hit her father with force blood came out. She said she could not find blood stains on Exhibit E.”
In his judgment at page 79 of the record of appear, the learned trial judge while considering and accepting the evidence of pw3 as believable; held thus:
“pw3 stated in her testimony in court that the 1st accused person used a stone Exhibit ‘E’ to hit the deceased the head several times and that the deceased and the 2nd Accused person continued to beat her father – the deceased which this again to my mind is authentic and I believe it and the court can convict on this evidence alone as held in the case of Nwaeze Vs The State (supra) cited by the Prosecution Counsel.” (sic) (Emphasis added)
Learned counsel for the appellants complained or challenged the mention of the words, “several times” in the review of the evidence of PW3 and finding by the learned trial judge. He argued that the words “several times” vis-a-vis the use of Exhibit E to hit the head of the deceased, must have operated in the mind of the learned trial judge and convinced him that the appellants intended to kill the deceased.
The question now is; where or when did the two damaging and devastating words, “several times” surface in this case? It came out for the first time in the prosecuting counsel’s reply at page 53 of the record of appeal. He put it thus:
“She told this Court the part played by the 2 accused persons during the incident that led to the death of the deceased. She, PW3 told this court how DW2 the 1st accused used a piece of stone Exhibit ‘E’ to the deceased on the head several times. The court can convict on this evidence alone. I refer to the case of Nivaeze v. The State (1996) 2 SCNJ pg.42 at 51.” (sic) (Emphasis added)
It was then re-echoed in the summing up by the learned trial judge at page 75 of the record oa appeal. He said:
He submitted further that the trice(sic) of stone Exhibit ‘E’ used by the 2 accused persons to hit the deceased on the head several times caused the death of teh deceased as confirmed by Ehibit ‘F’ the medical report” (Emphasis added)”
Thereafter, it featured in the finding by the learned trial judge at page 79 of the record of appeal which has been previously quoted in this judgment.
Learned counsel for the appellants cited Ochemaje (supra) and submitted that the evidence of pw3, the daughter of the deceased though admissible, it must however be treated with deserving caution on the basis of her blood relationship with the deceased. On who is a tainted witness and how to handle his or her evidence, the supreme court in Mbenu & Anor. v. The state (1988) 7 sc (Part 111 ) 71/81 per Nnamani, JSC (of blessed memory) stated thus:
“A tainted witness is a witness who, though not an accomplice, is a witness who may have a purpose of his or her own to serve. This court has always held that the evidence of such a witness should be treated with considerable caution and should be examined with a tooth comb, Indeed, trial court have been advised to be wary in convicting on the, evidence of such witnesses without some corroboration. See State v. Dominic Okolo & Ors. (1974) 2 SC 73, at 82; Jimoh Ishola v. The State (1978) 9 – 10 SC 81; Prater (1960) 44 C.A.R. 83/186; Frederic valentine Rusell (1968) 44 C.A.R. 147, 150. The requirement that a trial judge should in every circumstances, warn himself as one would in the case of accomplices, is one dictated by prudence not by law.”
It is to be noted that the learned trial judge at page 78 of the printed record made mention of this requirement in these words:
“Counsel for the 2 Accused persons urged the court to be caution before making use of evidence of blood relatives of the deceased especially that of PW3 the daughter of the deceased. It ought to be stated that the mere fact that a witness is a brother or daughter of a victim of a crime does not render the evidence unacceptable or that a case is lost ground on the ground that those who are witnesses are members of the same family or community. What is important is their credibility and that they not tainted witnesses and there is no law which prohibits blood relations from testifying for the prosecution where such a relation is the victim of the crime committed. See the case of Oguonzee v. the State (1998) 58 LRCN 3512, 3555, Omotola v. State (2009) 7 NWLR 148 @ 157-158” (sic)
However, the learned trial judge did not go further; other than to advert to importance of credibility and the law not prohibiting blood relations of victims from testifying, nothing was said about having cautioned or warned himself that such evidence should be treated with considerable caution and deep reflection, coupled with the need for corroboration as a matter of prudence before conviction on the basis of such evidence.
The law is settled that address of counsel do not constitute evidence to be relied upon by a trial court. It is not evidence property adduced. The obvious fact in this case, is that, that piece of evidence is not borne out from admissible evidence on the printed record of appeal. It came from the sub-conscious mind of and was imported therein by the prosecuting counsel before the trial court. There is thus the likelihood and strong possibility that it must have lingered in the thoughts of the learned trial judge and somewhat weighed on his mind, to the extent that reference was made to the said piece of evidence inclusive of the two words “several times” as “authentic and believable.” There was no evidence before the trial court that the 1st appellant hit the deceased with Exhibit E several times.
It is also noteworthy, that Exhibit E was not sent for laboratory cum forensic analysis to determine whether it was actuarlly used as a weapon during the fight. Having treated or regarded Exhibit E as a lethal weapon, there is the need to subject Exhibit E to microscopic scientific analysis, to determine whether there are blood stains on it and if any, whether it matches the brood group of the deceased. The tendering of such a report by the respondent would have assisted in proving its case beyond reasonable doubt. What is more, pw3 under cross – examination admitted that there are no blood stains on Exhibit E.
In the instant case as seen above, the learned trial judge reviewed the evidence on record and found that PW3 identified and tendered Exhibit E as the piece of stone used by the 1st appellant to hit the deceased on the head, “several times.” It is firmly established that the evaluation of the evidence adduced by a witness and the ascription of probative value thereto are matters within the exclusive preserve of the learned trial judge who has the singular advantage of seeing the witness or witnesses; of watching their demeanour while hearing them giving evidence. Thus, an appellate court will not readily disturb the findings of the learned trial judge unless they are perverse, improperly done, predicated on erroneous premise, in the sense that it is not properly borne out from the evidence adduced before it. In the instant case, the finding made above by the learned trial judge does not flow from the evidence adduced before the trial court with due respect, the above finding is perverse and this court is entitled to interfere therewith. I accordingly interfere with the said finding on the ground that it is perverse. The learned trial judge failed to properly appraise the pieces of available evidence before convicting the appellants as charged. The learned trial judge did not properly assess or evaluate the evidence of pw3 and pw4 on which he placed heavy reliance vis-a-vis Exhibits E, and F which evidence threw some doubts in the case of the prosecuting respondent herein.
The submission by the learned counsel for the respondent on non – challenge of evidence of pw3 regarding Exhibit E and how it was used by the 1st appellant cannot be sustained. The 1st appellant strongly denied that he hit the deceased on the head with a stone- Exhibit E. In Olayinka v. The state (2007) 9 NWLR (pt. 1040) 561/579 the emphasis was laid, per Tabai, JSC that the statement of an accused person to the police, if not confessional, is the very foundation of his defence.” In the instant case the 1st appellant in Exhibits B and G and in his oral testimony before the trial court, denied the allegation that he hit the deceased with Exhibit. E. The only piece of evidence in this regard is contained in Exhibit C – statement of 2nd appellant made to the police on 6th February, 2006, wherein he said:
“The only wound he had on the head was the stone my brother Anthony threw on him as they were fighting.”
The law is settled by virtue of section 27 (1) of the Evidence Act, that a confession is an admission made at anytime by a person charged with commission of a crime, stating or suggesting the inference that he committed the crime. Ikemson v. The state (1989) 3 NWLR (pt.110) 455; Saidu v. The state (1982) 4 SC 41, (1982) NSCC (Vol. 13) 70. Also by virtue of section 27(3) of the same, the contents of such a statement, be it confessional or otherwise, judicial or extra – judicial, only binds the maker and do not in anyway incriminate any co – accused and as such cannot be used to establish the criminal culpability of the co – accused for the offence charged. See Kasa v. The state (1994) 2 NWLR (pt. 325) 143; Solola v. The state (2005) 11 NWLR (pt. 937) 460. Thus, a statement made by one accused person incriminating a co – accused is inadmissible as evidence against the co – accused if he was not present where and when the statement was made or if he was not confronted .with the statement for his reaction thereto. Hence, the prosecution cannot rely on such a statement to sustain the conviction of the co – accused unless there is evidence that the co – accused adopted the said statement which was made when he was not present. see Fatilewa v. The state (2008) 12 NWLR (pt. 1101) 518.
In law, there is nothing like a weak defence in a criminal charge. Thus, a court in a charge of murder is duty bound to carefully consider any defence put forth by an accused person. see Frank Williams v. IGP (1965) NMLR 470; Williams v. The State (1992) 8 NWLR (Pt. 261) 515. such due consideration must be given, no matter how frivolous, improbable, incredulous, stupid, weak and unwieldy it might be, seem or look. Failure to consider and duly examine such a defence by a trial court, whether or not it has been raised by the accused person, amounts to a failure to perform a vital duty imposed on the learned trial judge and which may likely occasion a miscarriage of justice, that may likely result in the decision appealed against being set aside and the conviction quashed. See Opayenri v. The State (1985) 2 NWLR (pt. 5) 101; Namsoh v. The state (1993) 5 NWLR (pt. 292) 129; Peter v. The state (1997) 3 NWLR (Pt. 496) 625.
In the instant case, the appellants, particularly the 1st appellant raised the defence of provocation and self defence. Learned counsel for the appellants cited the cases of Olayinka v. The state (2007) 9 NWLR (Pt. 1040) 561 and Atiku v. The state (2010) 9 NWLR (pt.1199) 241. In support of the submission that if the learned trial judge had given proper consideration to the defences raised by the 1st appellant, he “would have come to a different conclusion and a different judgment.” one cannot but agree with the learned counsel for the appellant. In the instant case, the learned trial judge anchored his reasoning on what he referred to as “barrage of inconsistencies” which punctuated the case of the appellants; went ahead, waived aside the defence of the appellants and considered the same as unavailing and “not convincing.”
It has been long settled, that the prosecution such as the respondent herein has the bounden duty to prove its case by evidence of such quality as to leave the trial court, nay no one in no reasonable doubt as to the guilt of the accused person. Thus, where the prosecution fails to prove an essential ingredient in a murder charge, an appellant who has been convicted in such a trial is entitled to have his appeal allowed and the conviction and sentence quashed. see Akinfe v. The state (1988) 3 NWLR (pt. 85) 729. Such an appellant is entitled to be given the benefit of and have the doubt raised appertaining thereto resolved in his favour. see Kalu v. The state (1988) 4 NWLR (Pt. 90) 503.
While clarity, cogency of evidence and credibility of witnesses ensure removal of doubts from prosecution’s case, certainty enhances proof of criminal liability. Having examined the complaints of the appellants against the whole background and totality of evidence adduced in this case and in particular with regard to the evidence which led to the conviction of the appellants, I am left in a state of doubt. There is a big gap and or doubt in the case of the respondent. The existence of doubt pre-supposes that the case against the appellants has not been proved beyond reasonable doubt. I have such a lingering doubt in my mind about the guilt of the appellants herein and the same is accordingly resolved in their favour. Shande v. The State (2005) 12 NWLR (Pt. 939) 301; Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349.
I therefore have an obligation to interfere with the decision of the trial court and I so do. I accordingly resolve the two issues raised in this appeal in favour of the appellants. In the peculiar facts and given circumstances of the instant case, I find merit in the appeal and it is accordingly allowed by me. I hereby set aside the conviction and sentence of the appellants on the offence of murder charged in Charge No.HIT/5/C/2006. The appellants are hereby discharged and acquitted.
KUMAI BAYANG AKAAHS, J.C.A.: I was privileged to read in draft the judgment of my brother, Oredola, JCA. I agree with his reasoning and conclusion that the appeal has merit and it is accordingly allowed.
JA’AFARU MIKA’ILU, J.C.A.: In criminal trial all ingredients of the offence charged must be proved beyond reasonable doubt before an accused person can be said to be found guilty of the offence charged. In this case proof of cause of the death of the deceased had not been established.
Therefore the appellant can not be said to be found guilty of the offence charged. For this and other reasons as in the lead judgment I am of the view that there is merit in this appeal and I allow it. The conviction and sentence of the appellants for the offence of murder in charge No HIT/5C/2006 are hereby set aside. Accordingly the appellants are hereby discharged and acquitted.
Appeal succeeds.
Appearances
Nkereuwem Udofia Esq.For Appellant
AND
Chief Harrison Ataide, DPP Ministry Of Justice, Akwa Ibom StateFor Respondent
