JUMBO v. STATE (2020)

JUMBO v. STATE

(2020)LCN/14435(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/B/571C/2019

Before Our Lordships:

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

MOSES HAJIME JUMBO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE IMPORTANCE OF PROOF BEYOND REASONABLE DOUBT

The importance of proof beyond reasonable doubt that it was the act of a defendant that caused death of a deceased as a precondition for a positive verdict in a charge of manslaughter was settled by the West African Court of Appeal in the celebrated case of R. v. Oledinma 6 W.A.C.A. 202 thus:
“To establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased but that it did.”
That dictum has since become the law in Nigeria and has been repeatedly cited with approval by the Supreme Court in several cases including Uyo v. Attorney General of Bendel State (1986) LPELR-3452, (1986) 1 NWLR (PT 17) 418 (Karibi-Whyte, JSC); Ahmed v. State (2001) 18 NWLR (PT 746) 622 @ 650, 652 (Ayoola, J.S.C., and Kutigi, J.S.C. later CJN), Apugo v. The State (2007) 2 NCC 32 @ 41 (Onnoghen, JSC, later CJN), Egbirika v. The State (2014) LPELR- 22009 (SC) p. 28 (Kekere-Ekun, JSC). PER UGO, J.C.A.

WHETHER OR NOT THE PRIMARY ENQUIRY INTO THE CAUSE OF DEATH OF A PERSON IS AN ENQUIRY INTO THE BIOLOGICAL CAUSE OF DEATH

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. When what caused the death has been ascertained the question who caused the death is one of causal connection between the death of the accused and the biological cause of death.” (Italics mine)
See also Oforlete v. State (2000) LPELR-2270 (SC) p. 21 where the apex Court, in overturning the concurrent judgments of this Court on grounds of improper inference of cause of death without proof beyond reasonable doubt, said (Ogundare, J.S.C.) that:
“To sustain a conviction for the offence of manslaughter, it must be established beyond reasonable doubt, that it was the act of the accused that caused the death of the deceased.”
With Ayoola, J.S.C. adding at p. 2270 that:
“In every case where it is alleged that death has resulted from the act of a person, a causal link must be established and proved, in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act (omission) of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.”PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Edo State of 12th Day of October 2017 convicting appellant of the offence of manslaughter. Appellant was upon his conviction sentenced to fifteen years imprisonment with hard labour.

The charge upon which he was convicted alleged that he, Moses Hajime Jumbo (m), on or about the 24th day of September, 2014 at Saint Moses Nursing and Maternity Home, Uwelu Quarters, Benin City in the Benin Criminal Division unlawfully killed one Patience Ekrakene.

Besides the important issue of whether it was actually the act of the appellant that caused the death of the said deceased, there is no substantial difference on facts between the prosecution and the appellant. The undisputed facts are that appellant who is neither a medical doctor nor trained nurse or midwife but only worked in the past as a Clerk in the Pharmacy of P.W.1, Dr Macauley Iyare’s Clinic in Benin city, where he also received some informal training from P.W.1 as an aid to the nurses in the clinic (even as that training did not include delivery of women in labour or also

permit him to establish a clinic or maternity home), nevertheless set up and ran without License a Saint Moses Nursing and Maternity Home in Uwelu, Benin City.

In the course of running that illegal outfit, appellant on the 24th day of September 2014 admitted into his said clinic the now deceased lady Patience Ekrakene who was in labour and, by his own admission, in ‘critical’ condition. Appellant succeeded in assisting her to deliver her of a baby girl but the deceased was not so lucky. She died that same day, in fact just few minutes after the delivery, in appellant’s clinic and care. According to appellant in his statements to police and testimony in defence, she began to bleed a little for fifteen minutes or so after delivery. He claimed, without challenge from the prosecution, that he ‘arrested’ the bleeding by giving her Ergormetrine 0.5mg injection but she started to jerk twenty to thirty minutes later and gave up the ghost in his clinic and care. Appellant thereupon reported himself to police and was charged by the State for manslaughter for causing her death.

The State called four witnesses. Its first witness

was Dr. Iyare (P.W.1) earlier mentioned while its three other witnesses included the deceased’s brother, P.W.2, who was in Lagos at the time of the incident and only came down to Benin upon being informed of his sister’s death. The two police officers, P.W.3 who investigated the case at Ogida Police station, and P.W.4, who again investigated it and at State C.I.D. upon its transfer there, closed the prosecution’s case. P.W.4 in his testimony confirmed that while investigation was still ongoing the deceased’s family wrote to the police to carry their corpse away without autopsy and the police obliged so post mortem examination was not conducted on her.

Appellant testified alone in his defence and admitted that he did not attend School of Midwifery or Nursing but was issued a ‘Certificate’ by P.W.I (P.W.1 called it a Testimonial in his testimony). He also admitted too, that that ‘Certificate’ did not authorize him to set up a clinic. He nevertheless claimed that one could set up a clinic once one had sufficient exposure to medical practice. He insisted he could deliver women in labour and had not only worked

as a nurse and delivered women in labour in P.W.1’s Iyare Clinic but also in several other medical facilities including one Fresmason Clinic, St. Mary’s Hospital and St. Godwin’s Hospital all in Benin City where he claimed he also worked. Some of those cases he handled in the past, he said, were even more complicated than that of the deceased.

Regarding the Ergormetrine injection he administered on the deceased and why he did it, he had this to say, without challenge, in his examination-in-chief:
“Fifteen minutes after birth the deceased expelled the placenta. The deceased bled a little but the bleeding was arrested. Just thirty minutes later the deceased started jerking, I tried to do all I could but the deceased died. I gave her augmentin injection but she died. I have never seen such a case so I had to call the police…
“Augmentin injection is an injection given to a pregnant woman after she has put to bed and the placenta is out to avoid bleeding. I am a trained nurse.”

Under cross-examination, he added this bit in rounding of his defence:
“I have authority to take

delivery of anybody. The deceased died after she delivered the baby in my hospital. She died after the injection was given to her she was stable (sic). It was later she died. I did not cause the death of the deceased. I knew what I was doing when I administered injection on the deceased.”

At the end of the day, the argument between the prosecution and the appellant as it has also happened here turned on whether it was the 0.5mg Augmentin (or Ergometrine as he called it in both of his two extra judicial statements tendered at the trial as Exhibits A & B) injection appellant administered on the deceased that caused her death. That, the trial judge in his judgment found in favour of the prosecution’s contention. He said:
“Without doubt, it is glaring that the death of the deceased was instantaneous after the egormentrin was administered. That is the only irresistible inference anyone could have drawn.
“…
“…I find as a fact that the accused is a charlatan in and in furtherance of his crass mediocrity, unlawfully administered egormentrin injection on Patience Ekrakene on the 24th of September 2014 at St

Moses Maternity Home. Consequently the deceased died as a result of the administration of this injection.”

On that note and after making quite some heavy weather of appellant’s lack of qualification to do what he took upon himself and saying that proof beyond reasonable doubt is not proof to mathematical certainty, he found appellant guilty as charged and sentenced him to fifteen years imprisonment with hard labour.

The sole argument of the appellant in this Court as presented by his counsel Mr. E.O. Afolabi is that a vital element of the offence of manslaughter, namely that it was the act of the appellant in administering Ergometrin 0.5mg injection on the deceased that caused her death, was not proved by the prosecution so the trial judge was wrong in convicting him. He argues that the prosecution ought to have called a medical doctor to prove that it was the said Ergometrin 0.5mg injection that caused the deceased’s death; that without that evidence the trial judge merely speculated and relied on his own suspicion to find that appellant’s act was the cause of the deceased’s death.

The State relying principally

on the fact that appellant did not have the necessary qualification and experience to undertake delivery of women in labour and so engaged in an unlawful act by operating a maternity home to which he admitted the deceased and gave her ergometrine submits that it was his act that caused the deceased’s death so the trial judge was correct in his finding to that effect. Citing Akpuenya v. State (1976) 11 S.C. 269 @ 278 and Lori v. State (1980) 8-11 S.C. 81 @ 97, it further submitted that in as much as medical evidence is desirable to prove cause of death in homicide cases, it is not always a necessity and may be dispensed with where a deceased person dies in circumstances in which the manner of death shows beyond reasonable doubt that the accused person’s act was the cause of death; that cause of death could in appropriate case be inferred even where the corpse of a person alleged killed by an accused was not found. For that, they referred us to a number of cases including Adamu v. Kano Native Authority (1956) 1 F.S.C. 25, (1956) SCNLR 65, Ayinde v. The State (1972) 3 S.C. 153, Edim v. State (1972) 4 S.C. 160 and Essien v. State (1984) 3 S.C. 14 at

Relying further on the persuasive decision of Adeyinka Morgan, J., in The Queen v Chigbata Olise (1961) WNLR 1 @ 5, it also submitted that if a person without medical training takes upon himself to administer medicine and thereby destroys the life of the person to whom it was administered, it is manslaughter. It rounded off its response with the undoubtedly trite argument that proof beyond reasonable doubt means just that and not proof beyond all shadow of doubt or proof to the hilt, so the appeal should be dismissed.I find it necessary to first point out that the issue for resolution in this appeal is not really whether appellant ran an illegal medical outfit and/or that he tried to deliver a pregnant woman without the necessary qualification. Those facts are established and appellant may have been convicted without much ado on them if he was charged for such offences. He is not so charged so they are not issues here. The only issue here, rather, is whether the prosecution proved beyond reasonable doubt before the lower Court that it was the Ergometrine 0.5mg injection he, appellant, administered on the deceased that caused her death so he was guilty

of manslaughter and properly convicted.
The importance of proof beyond reasonable doubt that it was the act of a defendant that caused death of a deceased as a precondition for a positive verdict in a charge of manslaughter was settled by the West African Court of Appeal in the celebrated case of R. v. Oledinma 6 W.A.C.A. 202 thus:
“To establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased but that it did.”
That dictum has since become the law in Nigeria and has been repeatedly cited with approval by the Supreme Court in several cases including Uyo v. Attorney General of Bendel State (1986) LPELR-3452, (1986) 1 NWLR (PT 17) 418 (Karibi-Whyte, JSC); Ahmed v. State (2001) 18 NWLR (PT 746) 622 @ 650, 652 (Ayoola, J.S.C., and Kutigi, J.S.C. later CJN), Apugo v. The State (2007) 2 NCC 32 @ 41 (Onnoghen, JSC, later CJN), Egbirika v. The State (2014) LPELR- 22009 (SC) p. 28 (Kekere-Ekun, JSC).
In all those cases the deciding factor before the apex Court was whether it was proved beyond reasonable by the prosecution that the act of the

accused/appellant was the direct cause of the death and so appellants there were correctly convicted for manslaughter.
In Ahmed v. State (supra) for instance, it was not in dispute at all that the appellant, Ahmed, actually shot the deceased on the head with a gun and the deceased died three days later in hospital. His conviction for murder by the trial High Court of Kogi State was affirmed by this Court (per Musdapher, J.C.A., as he then was (later CJN) in lead judgment). On further appeal, the apex Court (Ayoola, JSC, pronouncing the lead judgment) in overturning those concurrent findings and substituting Ahmed’s conviction with one for assault had this among others to say (at p.641-642):
“Where a person is charged with an offence of culpable homicide the sequence in inquiry is whether the person alleged killed is dead, the cause of his death and whether any act of the accused as described in Section 220 is the cause of death.”
Adding further (at p.642) that:
“In a charge of culpable homicide if the cause of death has not been proved it is futile and illogical to proceed to consider whether it was the accused who

caused the death. 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. When what caused the death has been ascertained the question who caused the death is one of causal connection between the death of the accused and the biological cause of death.” (Italics mine)
See also Oforlete v. State (2000) LPELR-2270 (SC) p. 21 where the apex Court, in overturning the concurrent judgments of this Court on grounds of improper inference of cause of death without proof beyond reasonable doubt, said (Ogundare, J.S.C.) that:
“To sustain a conviction for the offence of manslaughter, it must be established beyond reasonable doubt, that it was the act of the accused that caused the death of the deceased.”
With Ayoola, J.S.C. adding at p. 2270 that:
“In every case where it is alleged that death has resulted from the act of a person, a causal link must be established and proved, in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death.

Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act (omission) of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.”
That is also the issue here: whether on the evidence adduced before the trial High Court of Edo State by the prosecution the Court was correct in its finding that the prosecution proved beyond reasonable doubt that it is the Ergometrine 0.5mg injection appellant administered on the deceased and nothing else that was the cause of her death. On that point, I am afraid I see force in the argument of the appellant that medical evidence was imperative and not just desirable. To assume without medical evidence, in the face of the unchallenged circumstances of the death of the deceased as related by appellant, that the said Ergometrine 0.5mg injection was the cause of death of the deceased amounts in my humble opinion to speculating and acting on suspicion, something the Court ought not to do. Again I find very apt the

admonition of the apex Court (Ayoola, J.S.C.) in Ahmed v. State supra at p.650 that:
“Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.” (Italics mine)
The painful but simple truth is that one cannot just overlook the possibility of the deceased simply dying from bleeding after childbirth as the appellant by his evidence suggested. That is why a post mortem examination should have been conducted on her and the result tendered at the trial. At the very least a physician should have been called to testify not only to what Ergometrine is as a drug but also its likely effect on a woman in the deceased’s condition. Interestingly too, the Online Search Engine Wikipedia describes Ergometrine thus:
“Ergometrine, also known as ergonovine, is a medication used

to cause contractions of the uterus to treat heavy vaginal bleeding after childbirth. It can be used either by mouth, by injection into a muscle, or injection into a vein.” (Italics mine)
Now, I am not by any means oblivious of the prosecution’s argument that cause of death could be inferred from the manner of a person’s death and that that can be done even in the absence of the corpse of a person alleged killed by an accused person. That is certainly the law and is supported by a host of authorities some of which the State correctly cited to us and reflected in this judgment. But then, every case is decided on its facts. That applies to even this principle cited by counsel. It is only where the facts of a case call for the application of a principle that it will apply. That much was again highlighted by the apex Court (Ayoola, JSC) in respect of this principle in Ahmed v. State at p.647 thus:
“It is easy to fall into the error of merely citing and relying on cases where the accused has been found guilty of murder, notwithstanding the absence of medical evidence, without adequate regard to the circumstances of each case. Often

circumstances are not alike. In almost all the cases in which medical evidence has been dispensed with there has been evidence of the nature of the injury or wound inflicted on the deceased by the accused. In quite a number of such cases death of the deceased has been instantaneous or had occurred shortly after the attack.”
And taking up the issue of when cause of death could be inferred, the apex Court (Ayoola, J.S.C.) in Ahmed’s case, after a thorough review of the cases on the subject (including Bakuri v. State (1965) NMLR 163, Enwenonye v. Queen (1955) 1 FSC 1; Azu v. State (1993) NWLR (PT 299) 303; Idirisu v. State (1968) NMLR 88, Homman v. State (1967) NMLR 23 and Alarape v. The State (2001) 5 NWLR (PT 705) 79), stated the correct position of the law thus:
“I have endeavoured by citation of these cases to show the circumstances in which proof of cause of death by medical evidence was dispensed with. The circumstances that may justify an inference that an accused caused the death of another when the body is not found are not the same as would justify an inference that the act of the accused caused the death of the deceased

whose body is found.”
His Lordship beautifully rounded of thus:
“To rely on cases of absence of corpus delicti for a general principle that medical evidence can be dispensed with without distinction as to the circumstances is clearly erroneous and misconceived. Any reliance on such cases for the determination of this appeal cannot be right as the circumstances are far apart.”
True it is that unlike most of the cases reviewed by His Lordship in Ahmed’s case the death of the deceased here did not take much time after the administration of the said Ergometrine injection on her by appellant, but it is equally true, too, on the other side of the spectrum, that the unchallenged evidence of appellant is that not only was the deceased bleeding before the he administered Ergometrine 0.5 injection on her, she had even stabilized and the bleeding ceased after the injection before she later started jerking and passed away. There is also the other distinction that the deceased’s death, unlike in the cases cited in Ahmed v. State, was not as a result of any ‘attack’ on her by appellant.

The persuasive decision of Morgan, J., inQueen v. Olise (1961) W.N.L.R. 1 cited by the State for its contention that if a person without medical training takes on himself to administer medicine and thereby destroys the life of the person to whom it was administered, it is manslaughter and also distinguishable on its facts. In fact that case rather supports my argument for the necessity of a post mortem examination to determine the cause of the deceased’s death and eliminate all reasonable doubt of her dying from post natal bleeding itself. In Olise, the accused (Mr. Olise) who administered the injection on the deceased lady (not a pregnant woman) that caused her death was a quack like appellant here, but unlike this case, a medical doctor, one Dr. Fajemisin who also testified in the trial as P.W.1, conducted post mortem on the body of the deceased woman and testified that she died of ‘acute poisoning from an injected drug’; that he could not find a drug that would produce the kind of result; that he was of the opinion that a mixture of various drugs could produce it, and that in his experience no natural ailments would produce such extensive discoloration and

shrinking of the organs as he observed. It is with the benefit of that medical evidence of cause of death that Morgan, J., in Olise’s case made the pronouncements now wrongly cited by the State. The facts of cases must be similar for one to apply as authority to the other, just as it was said (Oputa, J.S.C.) Oduye v. Nigerian Airways Ltd (1987) LPELR-2264) p.54-55 that:
“The expressions used by a Judge in his judgment must be taken with reference to the case, the facts of the case, the law on those facts otherwise the law will get into extreme and irritating confusion. ……”
Yes, perhaps and only perhaps (for these things of life and death are not set in stone even with a doctor’s presence) a medical doctor could have stopped the bleeding and saved the poor lady’s life if the quack that appellant is had so referred her instead of admitting her in his unlicensed clinic as he did; but then, as I observed earlier, he was not charged for that offence, even as the State could have well charged him with that too if it had advised itself properly. He was rather charged, unfortunately, with only manslaughter with

its requirement that it be proved beyond reasonable doubt that his act was the actual cause of death, a doubt the prosecution did not surmount with the necessary evidence, contrary to the trial High Court of Edo State’s speculative finding that it did.
In Ahmed v. State (supra) Kutigi, J.S.C. (later CJN) in his contribution in upturning the judgment of this Court had this to say at p.652:
“It is settled law that in a charge of murder or manslaughter it is not enough to show that the act of the accused person could have caused the death of the deceased. The prosecution has the onus to prove that it did in fact cause his death, and if the evidence does not prove that he did, then the failure of the accused to suggest some other cause does not confirm the case for the prosecution (see Frank Onyenankeya v. The State (1964) ALL NLR 151; R. v. Oledinma 6 W.A.C.A. 202). The cause of death of the deceased was therefore not proved in this case.”
I hold similar opinion here.
The summary of all the foregoing is that there is merit in the appeal. The appeal is accordingly allowed and the judgment of the High Court of Edo State convicting

appellant for manslaughter and sentencing him to fifteen years imprisonment with hard labour is here set aside. In its stead an order is here made discharging and acquitting him, Moses Hajime Jumbo, of the said charge of manslaughter.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, B.M. UGO, JCA. I agree with the reasoning and conclusion to the effect that this appeal should be allowed for being meritorious.
I also allow the appeal and abide by the consequential orders made in the leading judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment of my learned Brother BOLOUKUROMO MOSES UGO, JCA just delivered and I am in agreement with the reasoning and conclusions reached that the appeal has merit and that it is according allowed. I subscribe to all other consequential orders made thereto.

Appearances:

E.O. Afolabi, Esq., with him, Mrs F.O. Igbineweka For Appellant(s)

Ade Irehovbude, Assistant Director, Edo State Ministry of Justice For Respondent(s)