EMMANUEL BEN v. THE STATE
(2004)LCN/1649(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of November, 2004
CA/PH/245/2001
RATIO
EVIDENCE: ON WHOM LIES THE ONUS OF PROOF TO PROVE THE CAUSE OF DEATH IN A CRIMINAL PROCEEDING
It is trite in law that the onus is on the prosecution to prove the cause of death beyond reasonable doubt. In proving the cause of death beyond reasonable doubt, it is not only by production of medical evidence that the proof may be made. Where the victim of a beating died and the evidence leave no doubt as to the manner and cause of death, medical evidence can be dispensed with. See (i) Bakuri v. The State (1965) NMLR 163; (ii) Adamu Kumo v. The State (1968) NMLR 227. PER OMAGE, J.C.A.
JUSTICES
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
Between
EMMANUEL BEN Appellant(s)
AND
THE STATE Respondent(s)
OMAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court Umuahia, delivered on 6th June, 1989, Coram Maranzu, J. of Abia State of Nigeria. In a charge of murder against the accused person Emmanuel Ben; the learned trial court rejected his plea and convicted the accused person and sentenced him to death. The accused convict was dissatisfied with the judgment of the said court and has appealed to this court.
The appellant filed five additional grounds of appeal and formulated four issues for determination of the appeal. The issues are:
(1) Whether the absence of medical evidence as to the cause of death in the case was fatal to the prosecution case?
(2) Whether it was safe for the learned trial Judge to convict the appellant based solely on the evidence of witnesses who were related to the deceased?
(3) Whether there was sufficient evidence to sustain the defence of provocation and/or in the alternative defence of self-defence?
(4) Whether the prosecution proved the case of murder against the appellant beyond reasonable doubt as required by section 138(1) of the Evidence Act?
The respondent filed a brief in which he formulated the following sole issue:
“Whether the trial court was justified in convicting and sentencing the appellant for the murder of the deceased.”
The facts of the case are as follows: on 30/6/86, PW1 deposed in the court below as he sat in the front of his house at about 9.15 a.m. with his children, he saw one Ndukwe Iroanya, now deceased carrying on his head a jerry can of water, coming from the stream. Ndukwe Iroanya greeted him, and passed in front of his house.
Shortly after, he saw Ndukwe walking backwards hastily without the jerry can. PW1 said he shouted at Ndukwe to ask him whether he had seen a snake and Ndukwe replied that the accused person Emmanuel Ben waylaid him on the road. PW1 said he saw soon after the accused person running towards the deceased Ndukwe. The accused was holding a stick called “Icheku” with which he hit Ndukwe on the head with force after he had missed his target the first time. Ndukwe fell down and was shaking all over his body. When Emmanuel Ben, saw that Ndukwe had fallen on the ground and was mentally wounded, he took his slippers and ran away. The accused convict did not heed the call of PW1; and ran away. PW1 however said he called Emmanuel Ben and asked him to come and carry the person he has killed. At this time, as he was shouting, two young men appeared on the scene and carried the wounded Ndukwe Iroanya to his house. PW1 said he could not go immediately to Ndukwe’s house until his wife arrived to take care of the children who have seen the incident and were frightened. When later, PW1 went to the said Ndukwe’s house, he was told Ndukwe had been taken to the hospital. PW1 said he collected the “Icheku” stick used by Emmanuel Ben to beat Ndukwe when the latter had ran away from the scene.
Under cross-examination, PW1 said he did not know if the accused and Ndukwe had a previous quarrel; and that he did not know if anything happened between the deceased and the accused before Ndukwe started walking backwards. PW1 tendered the stick subsequently which was admitted as exhibit “B”. Onyemachi Anonye was one of the two young people who carried the said Ndukwe to his house, was the 2nd prosecution witness said he responded to the shouts of distress, together with another person, Udo Nwakamma to find that Ndukwe was lying on the ground injured and alive. Both of them carried the said Ndukwe to his home. Ndukwe was shaking in great pain but he could not talk and they did not learn from him what happened to him. It was the PW1 who told them what happened to Ndukwe: Udo Nwakamma helped also to carry the gravely wounded Ndukwe to his mother’s house and met there Ndukwe’s mother and his younger brother. A message was sent to Ndukwe’s brother, who on arrival from his teaching job arranged for a taxi, which took Ndukwe first to a police station where the party was advised to take him to the hospital.
The prosecution called also PW3, PW4 an infant, and PW5, a police officer who recited in evidence what he was told by PW1. The conclusion thereon is the testimony of the PW3, who deposed that he arranged to take his brother Ndukwe in a taxi to the hospital but that Ndukwe died before he was admitted to a hospital bed.
The prosecution witnesses were cross-examined by the counsel to the appellant in the court below.
The appellant testified in the court below to defence as follows – that he knew Ndukwe Iroanya now deceased. When Ndukwe saw him he put down the water he was carrying on his head and collected from a nearby house a stick with which he struck him. Accused said he fell back and the deceased hit him again on the head the third time. It was then the accused said he picked up the same stick and he hit the deceased in the head, he fell down. He said he was having his own hitting back when the PW1 approached him with a cutlass shouting that he should wait. He said he ran away from the scene, into the bush. He said he found his way to Umuahia police station where two days after he reported himself to the police. At the time he ran away, the said Ndukwe was alive. The accused called no witness.
Upon conclusion of evidence in court, the learned trial Judge considered the evidence before the court and convicted and sentenced the accused person to death, despite the absence of the evidence of the medical officer who is reported to be out of the country.
In this appeal, I wish to consider issues 1 and 4 of the appellant’s brief together. In the process, it is my view that the sole issue formulated by the respondent encapsulates the substance of the issue to be determined in the appeal. The respondent’s sole issue is “whether the trial court was justified in convicting and sentencing the appellant for the murder of the deceased?”
In his brief, the appellant’s counsel has submitted that the absence of evidence of the cause of death of Ndukwe Iroanya is fatal to the case of the prosecution; and the trial court was in error to count on such failure of the prosecution to prove the cause of death. Appellant’s counsel submitted that in the circumstance of the death of Ndukwe, it is only the evidence of a doctor as to the cause of death of the deceased; and that the death was caused by the action of the accused person. Counsel cited Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505 at 515 SC.
The gravamen of the appellant’s submission is that the evidence before the court was not sufficient to found a conviction of the accused person and he urged the court to dismiss the appeal.
The offence of murder is committed when a person is killed in the course of fighting; not made in self defence as in the case of R. v. Maye Nungu (1953) 14 WACA 379. If the testimony of the appellant is believed to the effect that the appellant struck the now deceased Ndukwe in the course of a fight. The averments and testimony of the appellant in the court below was not believed by the learned trial court. The appellant had deposed in the court below that the now deceased Ndukwe, had attacked him on sighting the appellant and taken a stick in the nearby bush to attack him, struck him three times before the now deceased Ndukwe started walking backwards and was seen to be doing so by the PWI. There is clearly evidence by PW1 to show that the now deceased person walked backwards hastily. The averment that there had been a previous encounter on the same day 30/6/86 between the appellant and the now deceased is the testimony of the appellant only; it was not witnessed by any one else, and the court below did not believe that it took place.
The court below believed the evidence of PW1 that it was because the appellant hit the now deceased Ndukwe on the head three times that the latter fell down and was shouting. Evidence tendered in the court by PW1, PW2 and PW3, show that the struck Ndukwe who fell down on being struck did not recover from the time he was struck by the appellant and died subsequently. The evaluation of evidence before the court is the preserve of the trial court. See Hyacinth Anyanwu v. Achilike Mbara (1992) 5 NWLR (Pt. 242) 386. Unless the conclusion reached from the facts is perverse, the appellate court will not substitute its own views for that of the trial court.
In the instant appeal, the conclusion reached by the trial court on the evidence tendered on the issues of the person who caused the death of the deceased is not perverse, and I agree with it.
On the cause of death, the appellant’s counsel in his brief has extensively made submission in this appeal that the failure to tender evidence in court on the death of Ndukwe is fatal to the case of the prosecution. In the instant case, the facts show undoubtedly that there is a lacuna in the time. A short period indeed after the appellant hit the deceased on the head three times and ran away, with knowledge that his victim the deceased fell down and was shaking; before the said Ndukwe died in the hospital. In the same way that there is absence of evidence as to whether anything occurred in the interim between the scene of incident and the hospital when he died so should there be no imputation in the evidence that anything occurred in the time between when evidence showed that Ndukwe fell as a result of being hit on the head by the appellant.
The appellant in his brief had submitted that Ndukwe could have died from other causes than the beating.
It is trite in law that the onus is on the prosecution to prove the cause of death beyond reasonable doubt. In proving the cause of death beyond reasonable doubt, it is not only by production of medical evidence that the proof may be made. Where the victim of a beating died and the evidence leave no doubt as to the manner and cause of death, medical evidence can be dispensed with. See (i) Bakuri v. The State (1965) NMLR 163; (ii) Adamu Kumo v. The State (1968) NMLR 227.
In the instant appeal, the circumstantial evidence which lead irresistibly to the conclusion of the cause of death may lead to the inference of the cause of death and dispense with medical evidence. See Igago v. The State (1999) 6 NWLR (Pt. 608) 568; (ii) Oforlete v. The State (2000) 12 NWLR (Pt. 681) 415, (2000) 7 SC (Pt. 1) 80 at 86. The court below has drawn the proper inference in the determination of the cause of death. I have no reason to hold otherwise. Issues one and four in appellant’s brief are refused and dismissed. I affirm and answer in the positive the issue formulated by the respondent in the respondent’s brief when the respondent asked whether the trial court was justified in convicting the appellant. I say and rule that the court below was justified.
Issue 3, presupposes that the learned trial court considered as the defence of provocation made by the appellant. Similarly, on issue 2 formulated by the appellant; the appellant’s brief made on assumption and submission that the evidences of the relation of Ndukwe had been considered tainted. There is no such evidence before the court. There is no evidence before the court below that PW1 and PW2 are relations of Ndukwe. In the evidence, imputation may be drawn that PW3 is a blood brother of Ndukwe, and the wife of the brother. The mere fact of PW3 and PW4 being relations of the deceased does not render their evidence in court tainted.
The evidence of PW3-PW5 has done nothing to add to or diminish the testimonies of PW 1 and PW2 before the court and the law has tendered incontrovertible evidence on which the court relied upon to convict the appellant. The learned trial court below considered the defence of the appellant and correctly came to the conclusion that if death results from the committal of a grievous bodily harm to another, it constitutes a murder. See section 316(2) of Criminal Code Laws of the Federation and the facts tendered by PW1 shows that the said Ndukwe received grievous harm, which resulted in his death. The injury has been proved beyond reasonable doubt to have been caused by the appellant; and an irresistible circumstantial evidence makes the cause of death referable to the serious injury caused to the deceased by the appellant. It is therefore admissible in law as proof of cause of death as held by the court below. I have no reason to hold otherwise. I affirm therefore the conclusion.
There was no believable evidence of provocation before the trial court. I see no such evidence in the record. The appeal is founded on non-existent and contrived opinion expressed in the brief. It is incompetent. The appeal is refused and dismissed. I affirm the judgment of the court below of M. O. Maranzu, J. delivered on 6/6/89. The appeal is dismissed.
FABIYI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Omage, J.C.A. I agree with his reasons leading to the conclusion that the appeal is devoid of merit and should be dismissed.
I, however, wish to chip in a few words of my own. PW1, an eye witness believed by the learned trial Judge, narrated how the appellant pursued the deceased and hit him on the head with force with a stick he was holding in his hand. The deceased fell down and started shaking. The appellant then took to his heels. The deceased was carried to the hospital where he died. To my mind, it has been established that the act of the appellant who hit the deceased on the head, a vital area of the body, with a stick led to the death of the deceased. The irresistible inference that can be properly drawn from the circumstance created by the appellant is that his act caused the death of the deceased. Evidence of a medical officer, if available, would only confirm the obvious.
It was contended on behalf of the appellant that the case against him was not proved beyond reasonable doubt. Since Lord Viscount Sankey, L.C., pronounced same as the golden thread in criminal trials in Woolmington v. D.P.P. (1935) AC 462 at page 481, it has been over belaboured in situations, even to the point of boredom. In any event, the appellant must be educated that proof beyond reasonable doubt does not mean ‘proof to the hilt’. It does not mean ‘proof beyond any shadow of doubt’. Refer to Nasiru v. State (1999) 2 NWLR (Pt. 589) 87 at p. 98; Ororosokode v. The Queen (1960) SCNLR 501 at 504; 5 FSC 208 at p. 210; Teper v. V. R. (1952) AC 480.
The evidence led by the prosecution was cogent and compelling. The act of the appellant caused the death of the deceased. The learned trial Judge found that the case was proved beyond reasonable doubt as enjoined by section 138(1) Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. I am unable to fault him. It is for the reasons adumbrated herein and of course the fuller ones contained in the lead judgment that I come to the unalloyed conclusion that the appeal lacks merit and must be dismissed. I order accordingly and affirm the judgment and sentence passed on the appellant by the court below.
ADEREMI, J.C.A.: I agree with my learned brother, Omage, J.C.A., whose reasons for judgment I have been privileged with a preview that the appeal is unmeritorious. I wish to make a little contribution by way of emphasis.
It is trite law that although medical evidence as to the cause of death is desirable; it is not essential in all cases of murder. Where no medical evidence is available or sought, there must be, in order to establish the cause of death, evidence compelling the inference that the deceased died as a result of an act or omission of the person charged with causing his death. In the instant case, PW1, an eyewitness testified as to how in the morning, the appellant chased the deceased to the front of his house (PW1) where he was sitting and hit the deceased on the head. That evidence is unassailable; it provides sufficient circumstantial evidence from which any trial Judge could rightly infer the cause of death as was done by the trial Judge. See Ozo v. The State (1971) 1 All NLR 111.
For this little contribution, but most especially for the detailed reasoning contained in the leading judgment, I would also dismiss this appeal as being unmeritorious and I affirm the judgment of the court below.
Appeal dismissed.
Appearances
Chief C.A.B. AkparantaFor Appellant
AND
The Attorney-General, Umuahia, Abia StateFor Respondent
