EMMANUEL ONYEJIAKA V. THE STATE
(1997)LCN/0341(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of July, 1997
CA/PH/118/94
RATIO
CRIMINAL LAW: WHETHER IN A CRIMINAL CASE THE PROSECUTION HAS THE BURDEN OF ROVING ITS CASE BEYOND REASONABLE GROUND
The law is settled that in a criminal case the prosecution has the burden of proving its case beyond reasonable doubt. In the instant appeal it is manifest that there are many yawning gaps in the case for the prosecution. The respondent has rightly to my mind conceded that the appeal has merit and should be allowed. This appeal is therefore allowed. The conviction and sentence of the appellant are hereby set aside. He is accordingly acquitted and discharged. PER ROWLAND, J.C.A.
JUSTICES:
ALOYSIUS IYORGYER KATSINA-ALU Justice of The Court of Appeal of Nigeria
RAPHAEL OLUFEMI ROWLAND Justice of The Court of Appeal of Nigeria
MORONKEJI OMOTAYO ONALAJA Justice of The Court of Appeal of Nigeria
Between
EMMANUEL ONYEJIAKA Appellant(s)
AND
THE STATE Respondent(s)
KATSINA-ALU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Njiribeako, J., of the Imo State High Court delivered on 1st March, 1994 whereby he convicted the appellant Emmanuel Onyejiaka of the murder of one Anthony Ohazuruike under Section 319(1) of the Criminal Code and sentenced him to death
At the trial, the prosecution called three (3) witnesses and closed its case. The appellant testified on his own behalf and called one witness. After the address of counsel, the learned trial Judge adjourned the case to 1st March, 1994 for judgment. On the 1st day of March, 1994 the trial Judge suo motu called one Dr. Donatus Sunday Izuagba as PW3 and thereafter delivered his judgment.
Before giving evidence in his own defence, the appellant, through his counsel, made a no case submission which was overruled by the trial Judge without calling upon the prosecution to reply. In the final result the trial Judge convicted the appellant and sentenced him to death.
Both parties filed their respective briefs of argument in this appeal which were adopted at the hearing of this appeal.
The appellant formulated a lone issue for determination. It reads:
“Whether the conviction can be sustained.”
For its part the respondent adopted the sole issue raised by the appellant.
In dealing with the issue for determination in this appeal it was submitted for the appellant that the conviction cannot be sustained. It was said that to sustain a charge of murder the prosecution must prove the death of a living person, the cause of the death and that it was the act or omission of the accused that brought about the cause of death. For this submission appellant’s counsel relied on the following cases:
R. v. Abengowe (1936) 3 WACA 85; Ozo v. State (1971) 1 All NLR at 115; Okorogba v. State (1992) 2 NWLR (Pt. 222) 244 at 253.
It was submitted by counsel that the absence of any of these elements will vitiate any conviction on a charge of murder.
The appellant contends that the death of Anthony Ohazuruike was not established. It was argued that there was no evidence from any person who identified the corpse of Anthony Ohazuruike. It was said that the assertions of persons who never testified in court that they saw the dead body of Anthony Ohazuruike cannot substitute the proof required of the prosecution.
The respondent however does not agree with the appellant that death was not established. The respondent contends that the testimonies of PW1 Bartholomew Nwadiekwe and the appellant (DW1) show that death was established.
Now part of the evidence of PW1 reads:
“The accused and Mathias started to quarrel. Anthony the deceased and a younger brother to Mathias asked the accused if he would insult his brother. They started to quarrel and we tried to stop the quarrelling. I was still sharing the chicken when the deceased exclaimed the accused has stabbed him with a knife. I turned and saw Anthony bleeding from the left side near the chest I held Anthony and we got a car from the house of our chief and I took him to the hospital. The accused ran away after stabbing Anthony. I took Anthony to a private hospital called Onyeaghala Hospital, Izombe. After he was admitted I left. He died two days later at the General Hospital Oguta.”
The appellant testified as DW1. Part of his evidence-in-chief runs thus:
“On 27th July, 1983 I fought one Anthony Ohazuruike. I did not kill him. On that day I was amongst several other persons who gathered in the house of one Echere Ugochukwu at Amandera Izombe ……
As I was about to sit on one of the vacant places, Mathias Ohazuruike pushed me and asked why I should sit there…
Then his younger brother Anthony Ohazuruike came to where we were and asked me why I was insulting his brother. As I was about to reply he slapped me. We started to fight. There was a chair near the place. He tripped on the chair and fell. I did not stab him …..”
Under cross-examination the appellant testified in part as follows:
“I was arrested by the Police two days later. It was when I was at the Police custody that I learnt of the death of Anthony. This was about three days later.”
The evidence of PW1 and the appellant (DW1) reproduced above plainly show that the death of Anthony Ohazuruike was established. Appellants’ contention to the contrary is unfounded.
It was further the contention of the appellant that there was no legally admissible evidence as to the cause of death. It was submitted that the statements Exhibits A and B nor the medical report Exhibit C is admissible through a police officer who neither played any role in the investigation of the case nor knew the handwriting of the authors of those exhibits.
It was further submitted that the evidence and interpretations tendered by DW3 – Dr. Donatus Sunday Izuagba go to no issue. This witness was called suo motu by the court and there is nothing on record which suggests that the appellant was given any opportunity to challenge the evidence of this witness who was called after he had addressed the court.
It was pointed out that the learned Judge relied heavily on Exhibit C and the evidence of DW3 to convict the appellant.
The respondent concedes that Exhibit C – the medical report was wrongly received through PW3 a total stranger to the document. The respondent contends that the learned trial Judge was wrong to have relied on Exhibit C to convict the appellant. He deplored the manner in which DW3 was brought in suo motu by the trial Judge to testify.
It was also pointed out that the date of death of the deceased was doubtful. The Judge said the “probable date of death was put at 30th July, 1983.” the date alleged by the prosecution in the particulars of offence was 29th July, 1983.
In view of all these discrepancies, the respondent conceded the appeal. At page 11 of the respondent’s brief of argument, the respondent concluded thus:
“In conclusion, the respondent adopts the view of the appellant that the appeal should be allowed, and his conviction set aside ……….”
As I have already stated, in criminal trials, the burden is always upon the prosecution to prove the guilt of the accused person beyond reasonable doubt. The burden placed on the prosecution in a charge of murder is not discharged unless the prosecution has established not only the cause of death but that the act of the accused person did indeed cause the death of the deceased. See Okorogba v. State (1992) 2 NWLR (Pt. 222) 244 at 253.
The evidence called by the prosecution shows that the deceased was stabbed on 28/7/83 and was taken to a private hospital called Onyeaghala Hospital, Izombe. He was said to have died two days later at the General Hospital Oguta. There is no explanation as to why and how he ended up at the General Hospital, Oguta. There is no record of his treatment, the type of medication he received at any of the hospitals.
What is more Exhibit C – medical report – was tendered through PW3 who did not take part in the investigation of the case. Exhibit C was not tendered in evidence by the maker and PW3 who tendered it did not say how he came about the document. It is plain that Exhibit C was not from proper custody. The result therefore is that the cause of death has not been established.
On the state of the evidence before the court of trial I think the respondent rightly conceded the appeal. This appeal is therefore allowed. The conviction and sentence of the appellant are hereby set aside. He is accordingly acquitted and discharged.
ROWLAND, J.C.A.: I read in advance the judgment just delivered by my learned brother Katsina-Alu, J.C.A. I agree entirely with his reasoning and conclusion.
The law is settled that in a criminal case the prosecution has the burden of proving its case beyond reasonable doubt. In the instant appeal it is manifest that there are many yawning gaps in the case for the prosecution. The respondent has rightly to my mind conceded that the appeal has merit and should be allowed. This appeal is therefore allowed. The conviction and sentence of the appellant are hereby set aside. He is accordingly acquitted and discharged.
ONALAJA, J.C.A.: I was privileged to have had a preview of the lead judgment a case of capital offence of murder just delivered by my learned brother Katsina-Alu J.C.A. in which despite the attitude of the prosecution in not opposing the appeal proceeded further to consider the issues instead of swallowing hook, line and sinker the non opposition by the respondent. The stand taken in the lead judgment is a right step in the right direction as the law is that the appeal is to be heard on the printed record of appeal based on the evidence in the lower court. Although it is the law that in a murder trial all available defences whether raised or not must be considered for the defence. See John Peter (Ukiri) v. The State (1994) 5 NWLR (Pt 342) Page 45, confirmed by the Supreme Court.
It is common ground that it was not the investigating policeman that conducted the case that tendered the medical report how he came into custody was not explained so that foundation of proper custody was lacking as required under Section 124 Evidence Act Cap. 112 laws of the Federal Republic of Nigeria, 1990.
It is trite law that documentary evidence must be by primary evidence as defined under Section 96 or by secondary evidence under Section 97 Evidence Act Cap. 112 aforesaid. To admit any document it must be through the maker except there is compliance with the exceptions in Section 91 Evidence Act aforesaid. There was non compliance with the above sections of the Evidence Act referred to above therefore the documents were clearly in law not admissible.
It is trite law in our criminal jurisprudence that once there is any doubt it must be resolved in favour of the accused person because under our law an accused person has a fundamental right of innocence until his guilt is proved beyond reasonable doubt. In the instant appeal the guilt of the appellant was not proved beyond reasonable doubt, leading me to concur in allowing the appeal as done in the lead judgment. I abide with the consequential order of the acquittal of the appellant.
Appeal allowed.
Appearances
D.C. Denwigwe Esq. For Appellant
AND
J.C. Duru Esq. Deputy Director of Public Prosecutions, Ministry of Justice, Owerri, Imo State For Respondent
