The Supreme Court of Nigeria
Friday, the 6th day of July 1990
of the Court
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.
appellant was charged at the High Court of Anambra State, Ahakaliki Judicial
Division, of the murder of his brother one Nworie
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
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:
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
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
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;
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;
Okoro V. The State (1988) 5
N.W.L.R.(Part 94) page 255;
Okoro V. The State (1988) 5
N.W.L.R.(Part 94) page 255;
(iii) R. V. Laoye 6 W.A.C.A. 6.
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.
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:
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.
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.
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:
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).
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.
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.
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:
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
Ukoh's case (supra) decided was
that both the prosecution and the accused agreed
that autopsy was performed on the corpse.
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.
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.
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 ………………………………………………........................................................................................
consistent with a wound that can be caused by a sharp object (not knife).
It could be a metal or rough stick….
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:
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.
evidence of the appellant’s son (P.W.4) is the same effect.
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…..
-Corporal David Nwafor the Investigating Police Officer said inter alia:
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.
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.
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
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.
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.
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.
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.
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
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.
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.
is abundant evidence adduced before the High Court to justify the conviction.
appeal fails and is hereby dismissed.
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.
had a preview of the leading judgment of my learned brother, Olatawura, J.5.C.,
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.
had a preview of the leading judgment of learned brother, Olatawura. ].S.C.. and
agree with him that the appeal be dismissed.
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.
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.
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.
learned Justice of the Court of Appeal went on to reason thus at page 79:
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
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
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.