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In The Supreme Court of Nigeria

On Friday, the 6th day of July 1990

SC 227/1989

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Olajide Olatawura

......

Justice, Supreme Court

Ephraim Omorose Ibukun Akpata

......

Justice, Supreme Court

  

Between

 

Ukwa Egbe Enewoh

.......

Applicant

 And 

The State

.......

Respondent

   

 

Judgement of the Court

Delivered by

Olatawura ,J.S.C.  

 

 

The only issue raised in this appeal is whether there was proper identification of the body of the deceased to the doctor who performed the post mortem examination.

The appellant was charged at the High Court of Anambra State, Ahakaliki Judicial Division, of the murder of his brother one Nworie Ukwuru Enewoh. The particulars were that he murdered him on or about 30th July 1981 at Anyimechuku Alike Ikwo contrary to section 319(1) of the Criminal Code, Cap. 30, Laws of the former Eastern Nigeria applicable in Anambra State. The prosecution called 5 (five) witnesses. The appellant gave unsworn evidence from the dock and denied the charge.

The facts that led to the conviction are not in dispute. The deceased was the brother of the appellant. A dispute arose out of the use of a farmland. The appellant employed a woman to work for him on the farmland. The deceased on getting to the farm asked the woman to stop working thereon. The appellant did not take kindly to this. He then went home and collected a rod or iron bar which was later admitted in evidence as Exhibit C. He hit the deceased several times with the rod. The deceased shouted “Ukwa Egbe is killing me.” It was this shout that attracted the attention of the wife of the deceased (P.W. 1) to the scene. She ran there and saw the accused beating the deceased with the rod. The appellant's son (P.W.4) was there, but despite his plea with his father, the appellant continued hitting him with the rod. He hit him on the leg, stomach and hand. He was later carried to Abakaliki General Hospital where he died the following day in the Hospital.

Both counsel addressed the court. After a meticulous review of the evi­dence of both the prosecution and the defence, and a consideration of the submissions made, Offiah, J., found the appellant guilty as charged and sen­tenced him to death. Not satisfied with the judgment, the appellant appealed to Enugu Division of the Court of Appeal. The appeal was also dismissed and the conviction and sentence of death were affirmed. The appellant has now appealed to this court. The only ground of appeal argued and which is covered by the only issue raised for determination reads:

The learned Justices of the Court of Appeal erred in law in dis­missing the appellant's appeal and affirming the conviction and sentence of murder of the learned trial Judge, when the prosecu­tion failed to lead any evidence to identify the body examined by the 3rd P.W., Dr. Chukwudi Egbuonu as that of Nworie Ukwuru Enewob alleged killed by the appellant.

  Particulars of Error:

(a)    The prosecution at the trial led no evidence to establish that Nworie Ukwuru Enewoh, alleged killed by the appellant, was known to the 3rd P.W Dr. Egbuonu, during his life time.

(b)    The prosecution at the trial called no evidence of identification of the body of the said Nworie Ukwuru Enewoh (deceased) to the said 3rd P.W. Dr. Egbuonu, who performed the post-mortem examination; Ote Enewoh who identified the said body to the Doctor having died before the trial.

(c)    To warrant a conviction in a case of murder, the prosecution must call evidence in support of the identification of the body of the deceased to the Doctor who performed the post-mortem examination as that of the person alleged kil­led by the accused;

 (d)    The evidence of identification is vital and failure to call same is fatal to case of the prosecution:-

 (i)    The State V. Nichola£ Uzuagwu & Ors (1972) 2 E.C.S.L.R. Part II Page 429;

 (ii)    Osarodion Okoro V. The State (1988) 5 N.W.L.R.(Part 94) page 255;

(iii)    R. V. Laoye 6 W.A.C.A. 6.

Briefs were filed and exchanged. In the appellant's brief filed by Chief Debo Akande, S.A.N., the learned counsel for the appellant, learned coun­sel submitted that the fact “that evidence of identification of the body on which the autopsy was conducted was not available before the court constitutes a serious gap in the case of the prosecution to warrant a reversal of the Court of Appeal decision." He cited the case of Osarodion Okoro v, The State (1988) 5 N.W.L.R. (Pt.94) 255 at 267. Learned counsel then tried to distinguish the two cases relied upon by the Court of Appeal: Okafor v. The State (1965) N.M.L.R.20 at 22 and Elijah Ukoh v. The State (1972)5 S.C. 135 at 141.

In his oral submission before us, Chief Akande agreed that lack of iden­tification will not necessarily lead to acquittal in that where the body was not identified but there are pieces of evidence that can link the body with the body of the alleged deceased, that will satisfy the law that requires identifica­tion of the body. Learned counsel referred to last line of page 89 and lines 1-7 of page 90 - where Uwaifo, J.C.A., said:­

I will therefore say that P.W.3 was not sufficiently led in evi­dence it (sic) show that he was present when Ote Enewoh iden­tified his father's corpse to the doctor particularly having regard to the active role he played and the concern he showed through out in regard to this incident affecting his father, nor was he discredited in cross-examination to show he was not present.

It was the further submission of Chief Akande that whoever was present when the body was identified ought to have been called. In his own reply after adopting his brief Chief Okolo the learned Chief Legal Officer submit­ted that there was ample evidence which clearly identified the body on which the post mortem was performed. He referred to the evidence of P.W. I and also page 30 lines 5-10 of the record to show that the deceased died and his body was identified to the doctor and that the combined effect of the evidence of P.W.l and P.W3 shows clearly that the post mortem was per­formed on the deceased. From the submissions and the briefs, one thing is not in doubt: the death of Nworie Ukwuru Enewoh.

It is fair to say that Chief Akande, S.A.N., did not doubt that P.W.2 performed an autopsy, his question was: On whose body? This will lead us to the evidence of the doctor. It cannot be doubted and in fact there was abun­dant evidence also that Nworie Lkwuru Encwoh died. P.W.3 - Dr. Chuk­wudi Egbuonu who performed the post mortem on the body of the deceased Nworie Ukwuru Enewoh said:

l am a registered medical practitioner attached to the Abakaliki General Hospital. On 4/8/81, i performed a post-mortem exami­nation on the body of Nworie Ukwuru Enewoh. The probable date of death was 1/8/81. The body was identified by one Ote Enewoh, a junior brother to the deceased.

Chief Akande in the course of his submissions argued that since the Doctor did not say "The body was identified to me by Ote Enewoh," it will be difficult to say that the post mortem examination was performed on the body of Nworie Ukwuru Enewoh. It is therefore necessary to look for other evidence that the doctor P.W.3 performed the post mortem on the deceased's body. P.W.1 the wife to the deceased after narrating how the deceased was beaten by the accused and the shout of the deceased "Ukwa Egbe is killing me" reported the matter to the police and the deceased was taken to the Hospital. Which hospital? The answer can be found in the evidence of P.W.5 Corporal David Nwafor. He said:

On 30/7/81 a case of assault was reported by the accused's junior brother in respect of an assault on the deceased ………I saw the deceased. He was lying down in a pool of blood. I conveyed the deceased to the Abakaliki General Hospital (i.e. the Hospital where P.W.3 was the doctor) I went back to the hospital a day after and observed he had died. The deceased was one Nworie Ukwuru Enewoh. There was a post mortem examination. (italics mine).

In my view, it has been established beyond doubt that there was an au­topsy by P.W.3 on the body of the deceased. Where the totality of the evi­dence of the prosecution showed unmistakably that the body on whom a doctor performed a post mortem examination was that of the deceased a separate witness though desirable is not a necessity. The position would have been different if the learned trial Judge did not accept the evidence of P.W.l, P.W.3 and P.W.5.

There is a clear difference between a situation where the witness who iden­tified the body to the doctor who performed the autopsy was not called and a situation where the witness who identified the body during the autopsy died before the trial. In the former case, a doubt is cast on the case of the pro­secution as to the identification of the person allegedly murdered. In the latter, i.e. when the person who had earlier on identified the body to the doctor died before the trial, the court must look for pieces of evidence which will show conclusively that the doctor performed the autopsy on the body of the person allegedly murdered. I bear in mind that the learned trial Judge when considering this issue in his judgment said:

From the entire evidence it does not appear the issue was con­tested as both parties were not in doubt as to the identity of the subject matter of the charge; see Ukoh V. The State (1972)5 S.C. 135 at 141.

This however does not debar the appellant's counsel from raising it on appeal more so where the identification of the body is in issue. To prove that the deceased died and that it was in respect of his body that an autopsy was performed appears to me a legal requirement:

Osarodion Okoro v. The State (1988) 5 N.W.L.R. (Pt.94) 255;

R. V. Laoye & Anor. 6 W.A.C.A. 6;

Okafor v. The State (1965) N.M.L.R. 20

Elijah Ukoh V. The State (1972)5 S.C. 135

 

What Ukoh's case (supra) decided was that both the prosecution and the accused agreed that autopsy was performed on the corpse.

The real purpose of identification is to ensure that there is no miscarriage of justice. Unless the death of the person in respect of whom the ac­cused was charged is proved beyond reasonable doubt. the accused may be convicted for the murder of a person yet alive. This should be avoided. In this case on appeal there was sufficient and uncontroverted evidence that Nworie Ukwuru Enewoh died. And the issue of the identification was seriously canvassed before the lower court. In coming to a decision on this point, Uwaifo. J.C.A., before reviewing the above authorities said:

It is in order to eliminate any possible mistake of an autopsy being performed on a corpse other than that of the deceased in respect of whom an accused is charged with causing his or her death that evidence of the relevant corpse is needed.

I agree. It is not the law that only direct evidence of identification will satisfy C this requirement. Circumstantial evidence which leads to one conclusion that the autopsy was performed on body of the deceased is admissible. It must however be cogent and unequivocal. Uwaifo, J.C.A. went further and said:

It could be evidence of some peculiarities known about the de­ceased’s physical features or found or associated with his or her body from which identity could hardly be mistaken. It could also be that from the nature of the available evidence there is reliable nexus of some sort between the injuries received by the deceased as given by those who saw them when or after he received them and those described by the doctor on performing the autopsy.

Dr. Chukwudi Egbuonu (P.W.3) who performed the post-mortem said:

My findings were as follows: The body was that of an adult male aged about 55 years and about I .6 metre tall. Examination revealed a compound fracture of the distal third. that is the lower 1/ 3 of the right leg. The injury is consistent with impact with a blunt object ………………………………………………........................................................................................

This is consistent with a wound that can be caused by a sharp object (not knife). It could be a metal or rough stick…. It was an impact with a blunt object that gave rise to the traumatic and hemorrhagic attack. The blunt object could be a heavy stick or metal…. The metal could be a rod, any cylindrical rod that has some weight. It need not be cylindrical.

 The question then is: was there any evidence from the prosecution witnesses that supplied details given by the Doctor (P.W.3). The answer is in the posi­tive. See the evidence of P.W.1 (the wife of the deceased) who said:

When we got there. the accused saw us and ran away with his son. I saw the accused when he was beating the deceased. The The accuses has a rod. He left the rod there when he ran away. I saw the rod.

The evidence of the appellant’s son (P.W.4) is the same effect.  

My father ran home and collected a rod. As the deceased was going home, the accused hit him with the rod. I was crying when he was hitting him with the rod. I pleaded with the accused not to hit him with the rod. Accused ignored my plea and hit him…..

P.W.5 -Corporal David Nwafor the Investigating Police Officer said inter alia:

I went to the scene of incident at Anyim Chukwu. I saw the deceased. He was lying down in a pool of blood. I conveyed the deceased to tile Abakaliki General Hospital. I went back to the hospital a day after and observed he had died. The deceased was one

Nworie Ukwuru Enewoh. There was a post-mortem examination. During the course of my investigation I collected an iron bar from die scene, basin, hoe and plate from the scene…..Accused admitted being the owner of the iron bar.

As pointed out earlier the sum total of the evidence of P.W. 1, P.W.3. P.W.4 and P.W.5 pointed unequivocally to the fact that the post-mortem was performed on the body of Nworie Ukwuru Enewoh.

Having disposed of the only ground of appeal, the appeal will be. and is hereby dismissed. The conviction and sentence passed by the High Court are hereby affirmed.  

Judgment delivered  by

Obaseki, J.S.C.

I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Olatawura, J.S.C. I agree with him that the appeal fails and must be dismissed as his opinions on all the issues for determination accord with mine.

This is a murder appeal. The appellant was convicted by the High Court, Abakaliki, of the murder of Nworie Ukwuru Enewoh and sentenced to death. His appeal to the Court of Appeal was unsuccessful and has now appealed to this court against the conviction and sentence of death.  

The only issue raised for determination is as to the identity of the body on which P.W.3. Dr. Chukwudi Egbuonu performed the autopsy or post mortem examination. Was it the body of Nworie Ukwuru Enewoh or the corpse of someone else? The issue arose from the fact that Ote Enewoh who P.W.3 testified identified the body to him as that of his brother, died before the trial. The facts of the case and the findings of the court below on the issue has been set out in detail in the judgment of my learned brother, Olatawura, J.S.C.. and I shall not repeat them here. There is established before the High Court the death of Nworie Ukwuru Enewoh as a result of the assault on n by the appellant. There is evidence that one Ote Enewoh was a brother of the deceased and that he died before the trial of the appellant. There is evidence accepted by the court that he identified the dead body of Nworie Ukwuru Enewoh to the P.W.3 for autopsy. The only evidence not available is the evidence of Ote Enewoh to the effect that he identified the body of Iwone Ukwuru Fnewoh t~ P.W.3 before he carried out the post mortem examination on the body.  

Chief Debo Akande. S.A.N ., contended that the absence of this piece of evidence  is fatal to the conviction as there is a doubt as to the identity of body examined by the doctor and consequently, the probative value of P.W.3's evidence seriously affected. The effect of the absence of direct oral evidence of Ote Enewoh can be nullified by available circumstantial evidence of high probative value.  

There is available evidence of the findings of P.W.3 or the result of his post mortem examination and these findings tally or tie up with the evidence of injuries inflicted on the body by the appellant. The evidence of P.W. 1, P.W.2, P.W.4 and P.W.5 all lead to one conclusion that the body examined by P.W.3 was the body of the deceased.  

There is no doubt that the absence of evidence of identification of the corpse examined circumstantial or direct is fatal where medical evidence of the cause of death is vital. See  

Osarodion Okoro V. The State (1988) 5 N.W.L.R. (Pt.94) 255;

  R  v. Laoye 6 W.A.C.A. 6.

 

But where there is circumstantial evidence of identification of the corpse which point irresistibly to the body of the deceased, Nworie Ukwuru Enewoh. as pointed out above. the conviction must stand despite the non-availability of direct oral evidence of the person who identified the corpse to the doctor.  

There is abundant evidence adduced before the High Court to justify the conviction. The appeal fails and is hereby dismissed.  

Judgment delivered  by

Eso, J.S.C.

I have had the privilege of a preview of the judgment which has just been read by my learned brother, Olatawura, J S.C. I entirely agree that the appeal be dismissed and it is hereby dismissed.

Judgment delivered  by

Kawu, J.S.C.

I have had a preview of the leading judgment of my learned brother, Olatawura, J.5.C., which has just been delivered. I agree there is no merit in the contention that the body of the deceased was not properly identified to the doctor who performed the post mortem examina­tion. The appeal lacks merit. and for the reasons stated in the leading judgment, I too will dismiss the appeal and it is hereby dismissed. The decision of the Court of Appeal is affirmed.

Judgment delivered  by

Akpata, J.S.C.

have had a preview of the leading judgment of learned brother, Olatawura. ].S.C.. and I entirely agree with him that the appeal be dismissed.

The central issue in this appeal is whether failure of the prosecution to call as a witness the person who was said to have identified the corpse of the deceased to the doctor who performed the autopsy is always fatal to the prosecution's case. If not, whether the instant else is one of those cases where failure to do so will not necessarily be detrimental to the case of the prosecution.  

It is trite law that death of the deceased must he established by the prosecution in a murder trial. It is iii this light that the identification of the corpse of the person said to have been murdered. if the body is found. is vital to a successful prosecution of the person charged with the murder. Therefore where medical evidence is essential as to the cause of death it is invariably also es­sential that the person who allegedly identified the corpse of the deceased to the doctor is called to testify as to the identification. unless the identity of the deceased can be inferred from the circumstances of the case.  

The first question to resolve in this appeal is whether it was established that one Ote Enewoh identified the corpse of the deceased, Nworie Ukwuru Enewoh, to Dr. Chukwudi Egbuonu, P.W.3. In his judgment, after referring to the evidence of P.W.2 the son of the deceased who testified that "it was Ote Enewoh who identified the body of the deceased to the doctor dur­ing the post mortem examination", Uwaifo. J.C.A.' observed thus:  

He (P.W.2) was not asked if he was present when Ote Enewoh identified the body of the deceased to the doctor nor, on the other hand, was it suggested to him that he was not present. I have pointed this Out here but I shall return to it later.

The learned Justice of the Court of Appeal went on to reason thus at page 79:  

’I am unable to accept any proposition of law that an accused person proved to have committed an act which caused the death of another must be acquitted simply because the person who identified the corpse of the deceased to the doctor was not available to testify even though there are other facts from which to construct a linkage between the deceased and the corpse on which the doctor performed an autopsy.     ………………. ..........................................................................................

……Take this very case where Ote Enewoh is dead. He iden­tified the deceased to the doctor. Simply because he could not be called to testify, it is being urged that the case against the appel­lant was not proved. I do not agree.  

It would appear from the above quoted passage of the judgment that the learned justice of the Court of Appeal accepted the fact that Ote Enewoh infact identified the corpse to the doctor and that 'there were other facts from which to construct the linkage between the deceased and the corpse on which the doctor performed autopsy.  

I am inclined to agree with Chief Debo Akande. learned Senior Advocate, that it was wrong for the learned justice of the Court of Appeal to hold Ote Enewoh identified the corpse to the doctor after he had stated that P.W.2 "was not asked if he was present when Ote Enewoh identified the body of the deceased to the doctor." The evidence of P.W.2 in the circumstance amount to a hearsay. As rightly submitted by the learned Senior Advocate "it is the duty of the prosecution to lead enough or full evidence  that will establish its case beyond doubt."  

It also seems to me that Kastsina-Alu. J.C.A. fell into the same error when in his supporting judgment he concluded that Ote Enewoh identified the body of the deceased to P.W.3 Dr. Egbuonu. He had this to say at page 95.  

P.W.2 Godwin Nworie is the son of the deceased. He gave evidence and said that one Ote Enewoh identified the deceased to Dr. Egbuonu. He also disclosed that Ote Enewoh died before he could testify. This piece of evidence was not challenged nor was it discredited in cross-examination.

 If the prosecution failed to lead sufficient evidence it would not be the duty of the defence counsel to ask questions that would enable a witness to fill gaps in the prosecution's case by supplying relevant evidence detrimental to the accused. Acquiring the skill of perceiving at the spur of the moment a situation that calls for silence is a necessary art in advocacy. Failure of defence counsel to ask questions which may clarify a piece of evidence adduced by a witness for the prosecution cannot be held against the defence.  

I agree that it is dreadful and unacceptable to acquit and discharge an accused person charged with the offence of murder merely because the per­son who allegedly identified the corpse of the deceased is dead. It is also, to my mind, equally horrifying to presume that the person alleged to have iden­tified the corpse of the deceased in fact identified it to the doctor merely be­cause he had since died and therefore could not testify.  

The position however is that if there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased, the evi­dence of the person, dead or alive, said to have identified the corpse is not indispensable. Indeed a conviction for murder can be made without the recov­ery of the dead body if there is positive evidence that the deceased has been killed. In effect the need for anyone to identify the body of a deceased to a doctor is not a sine qua non in all murder cases. See Edim V. The State (1972) 4S.C. 160.  

Besides. it is also trite law that medical evidence though desirable in establishing the cause of death in a case of murder, is not essential provided that there are facts which sufficiently show cause of death to the satisfaction of the court. See Lori v. The State (1980) 8-11 S.C. 81.  

In the case of Garos Bwashi V. The State (1972) 6 S.C. 93, the medical report of a post-mortem examination was rejected by the trial Judge because there was conflict in the report as regards the identity of the body on which the examination was performed. He however drew the necessary inference as to the cause of death and convicted the accused for murder. On appeal this court affirmed the conviction saying that it was impossible to hold that the conclusion reached by the learned Judge was unreasonable or unwar­ranted having regard to the evidence.  

In the case of Osarodion Okoro V. The State (1988) 5 N.W.L.R. (Pt.94) 255 at page 289 Nnamani, J.S.C., made the point with which lam in full agreement, that ~it is not only desirable but essential that the person who iden­tified the corpse to the doctor should be called to give evidence. Whether the failure to call him should be fatal to the conviction ought to depend on the evidence available in the case and the general circumstance. Of course this is only relevant in those cases where death cannot be inferred from the cir­cumstances, for if the latter is the case, medical evidence may not even be needed."  

The position therefore, it seems to me, is that the principle that failure to call the person who allegedly identified the corpse of the deceased to the doctor is fatal to the case of the prosecution, though good law, is narrow in its application. It is restricted to situations where the identity of the body examined by the doctor is shrouded in doubt, and there is no other evidence to clear the doubt.  

It is correct to state, as held by Uwaifo. J.C.A.. that there is sufficient and compelling circumstantial evidence, pinpointed by my learned brother, Olatawura, J.S.C., to lead to the irresistible inference that the autopsy carried out by P.W.3 was on the body of the deceased. Nworie Ukwuru.  

The appeal therefore fails. It is accordingly dismissed. The conviction and sentence passed by the High Court and upheld by the Court of Appeal are hereby affirmed.  

Appeal dismissed.

Counsel

Chief Debo Akande

 

For the Appellant

Chief Okolo, Chief Legal Officer

Imo State Ministry of Justice

 

For the Respondent