⦿ CASE SUMMARY OF:
Augustine Ugbogbo v. The State (2016) – CA
– Evaluation of evidence;
– Death sentence;
– Dying declaration;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Yargata Byenchit Nimpar, J.C.A.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Charles Musa;
* FOR THE RESPONDENT
– Mrs. O.A. Akin Adesomoju;
⦿ FACT (as relating to the issues)
This appeal is against the judgment of the Lagos State High Court delivered on the 4th July, 2014 by HON. JUSTICE E. A. ADEBAYO wherein the trial Court found the Appellant guilty of the offence of murder and convicted him to death by hanging.
Aggrieved by the said decision, the Appellant filed a Notice of Appeal on the 26/9/14 setting out grounds of Appeal.
1. Whether the failure of the lower Court to properly evaluate all evidence placed before it and to consider the issues raised by the Appellant occasioned a miscarriage of justice?
2. Whether the lower Court was right to convict the Appellant on the basis of the alleged dying declaration?
3. Whether the lower Court passed a valid sentence on the Appellant?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: SUCCEEDS PARTIALLY; THE COURT OF APPEAL STATED, “In the whole therefore, the appeal partially succeeds, the judgment of the lower Court delivered on the 4th of August, 2014 is hereby set aside. Pursuant to Section 227 of the Administration of Criminal Justice Law of Lagos State 2011, I hereby substitute the sentence of death by hanging to a sentence for life imprisonment.”]
1. ISSUE 1 WAS PARTIALLY RESOLVED IN FAVOUR OF THE APPELLANT. THE COURT OF APPEAL HELD HIM LIABLE FOR NEGLIGENT INSTEAD.
i. Starting from the autopsy report Exhibit P7 (page 36 of the Record), the autopsy report shows the cause of death to be (a) Septicemia and (b) Septic Burn injuries. The Appellant contended that if it was considered the Court would have come to the conclusion that the Appellant did not cause the death of the deceased because the burns became septic and the Appellant did not cause the infection. First, the Appellant going by the evidence before the Court was not the one who took the deceased to the hospital. She was rushed to the hospital by neighbors and was admitted immediately. There was no delay in giving the deceased medical attention. The said Exhibit P7 also stated that the burns were severe, all over her body, particularly at the back and was about 45% degree burns. The trial Court did not need any additional evidence to know that fire from the kerosene stove caused the burns on the deceased warranting her admission. She also died in the hospital despite the medical care and without any intervening act from external factors.
ii. The argument of the Appellant is too pedestrian because the law holds the Appellant responsible since he intended the probable consequences of his act which contemplates, naturally, that a burn wound can become infected and in this case the degree of the burns was severe and high.
iii. It is not the law that the statement must be a formal statement in anticipation of death. What is required is a statement made by the deceased during his lifetime when he is dying or believes he is approaching death as a result of the injury, which caused his death. The statement must be related to the fact of what caused the death. I find the statement of the deceased admitted as Exhibit 11 a dying declaration and therefore properly admitted in evidence. The complaint on the exhibit is misplaced. It is clear that the Court did not rely on the evidence of PW1 as the dying declaration. What PW1 said she was told is what is in the said Exhibit 11. A dying declaration is an exception to the hearsay rule because it can only be a dying declaration after the person who said it has died and some other person narrates what he heard the deceased say before death. You can’t recall dead people to come back to affirm such a statement or reach them to confirm the statement made before death.
iv. Except for the dying declaration, the statements of the persons not called as witnesses, i.e. Exhibits P8 and P9 (statements of an eye witness and that of the Divisional Investigating Police Officer) are hereby discountenanced. The Court cannot use such statements as evidence without passing them through cross-examination particularly in a murder trial. I therefore agree with the Appellant that the Court cannot rely on such statements as evidence to convict the Appellant or to show the cause of death.
v. The trial Court also believed the dying declaration over and above the evidence of the Appellant. At the point the Court rejected the evidence of DW2, the only evidence as to how the incident occurred was the dying declaration against the evidence of the Appellant. To find which one is more reliable recourse must be had to the other circumstances such as the nature of the burns and particularly the medical report. If any doubt exists, then it must go to the advantage of the Appellant. From the autopsy report, the burns were more on the back though she was burnt all over except the face. If the deceased was running away from the Appellant and he threw the stove at her, then the back will be the worst affected. And the same would happen if he pushed her onto the stove. The deceased said he threw the stove at her while he said he pushed her and she fell on the stove. We don’t have any circumstantial evidence to guide us on what to pick between the two. In the circumstance, a doubt is created and it must be resolved in favour of the Appellant.
vi. I will say the act of the Appellant was negligent and rash. He should have averted his mind to the effect of his action knowing fully well that she came from the fire place when he pushed her there. The only other explanation is to say he deliberately pushed her there but the circumstances of their arguing over the act of throwing away food definitely removes the intention to cause grievous injury. I find that the Appellant is entitled to the defence of negligence.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. A dying declaration was discussed above. It was properly admitted to establish the fact of the cause of death of the deceased. Is it of any less value in ascribing evidential value to it compared with the evidence of a living person on the cause of death? I do not think so. It is evident that the Court could rely upon it just like any other piece of evidence before the Court. Furthermore, conviction in a criminal trial as noted above is not dependent on the number of witnesses but the quality or evidential value of the evidence relied upon by the Court. A single witness if believed by the Court can establish the commission of a crime.
ii. In this case apart from the dying declaration, there is the medical report and the evidence of PW1 and DW1, the Appellant himself. The only point of departure with the Appellant is where he said he merely pushed her onto the stove while the dying declaration said he threw the stove at her. The evidence of PW1 corroborating the dying declaration is additional confirmation that the Appellant threw a burning stove at her. Post mortem report has details of parts of the body of the deceased that were burnt. The dying declaration is from the statement she gave to the police before she died and the one she made to PW1. The same evidence was made by different persons at different times affirming the same fact.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT. THE COURT STATED: “Therefore, whichever way it is considered the sentence quoted above substantially complies with the law. The statutory requirement did not stipulate that the exact words of the legal provision must be quoted word for word to make it valid. As long as the essence of the sentence is pronounced on the convict, the law would be deemed to have been satisfied. I also find that this issue is not made out and I resolve it against the Appellant.”
S. 83 Evidence Act 2011;
Section 301(1) and (2) of the ACJL, Lagos State;
⦿ SOME PROVISIONS
The Evidence Act (2011) provides for a dying declaration, Section 40 states: 1. A statement made by a person as to the cause of the circumstance of the events which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believe himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery. 2. A statement referred to in Subsection (1) of this Section shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question.
⦿ RELEVANT CASES
MAFIMISEBI v. EHUWA (2007) 2 NWLR (Pt. 1081) 385: “It is settled law that the evaluation of evidence and the ascription of probative value thereto resides within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute its own views for the views of the trial Court but the Court can intervene, where there is sufficient evidence to sustain the judgment, or where the findings of fact of the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence in the Court. – Per ONNOGHEN, J.S.C.”
⦿ NOTABLE DICTA
Generally, the duty of evaluation of evidence is preeminently that of the trial Court which had the singular advantage of seeing and hearing the witnesses during their testimony. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Evaluation of evidence on its part is assessing or weighing the evidence of witnesses using the accepted parameters or factors such as admissibility, relevance, probability, conclusiveness, etc and placing it on the imaginary scale of justice in order to see which one has more weight using the relevant factors or consideration including the demeanor of witnesses from which the Court may draw necessary inferences from the opportunity of seeing and hearing them testify. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Can it use the statement of a witness who was not cross-examined to verify the truthfulness of the criminal allegations? I am of the view that it would occasion a miscarriage of justice if Courts rely on such statements to convict persons facing a serious charge like murder. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Cross-examination is the opportunity the defence has to impeach the evidence of the witness called by the prosecution and if that opportunity is not provided, then the principle of fair hearing would have been breached and the trial cannot pass the test of a fair trial. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Cross examination is a potent weapon in the hands of the defence to destroy the case of the prosecution. It is the only opportunity the defence has to contradict, discredit, destroy or damage the case of the prosecution through its witness, therefore, I am of the view that it is necessary to afford the defence the opportunity to cross examine a witness after which the Court can make use of the evidence that remains standing and not destroyed. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
The trial judge did not do a thorough evaluation of the evidence before the Court required for a serious case like a murder trial. The duty of evaluation is primarily that of the trial judge and it is difficult for an appellate Court to evaluate the evidence of a witness it did not assess while testifying and under cross examination. A document can be easily re-evaluated but it is difficult for a witness. The evaluation done was very scanty and inadequate. The nature of the charge should have informed the trial Court to do a thorough evaluation more so in view of the decision it arrived at. To convict a person to death should be on a thorough and adequate evaluation of evidence before the Court. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Proof in criminal cases is not based on the number of witnesses who testified but on the quality of evidence before the Court. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
It is trite that the wrong pronouncement of sentence does not render the sentence defective. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
There are certain elements that a good judgment should contain. Some of these are: i. the issues or question to be decided in the case. ii. The essential facts of the case of each party and the evidence led in support. iii. The resolution of the issues of the facts and the law raised in the case. iv. The conclusion or general inference drawn from the facts, and the law as resolved; and v. The verdict and orders made by the Court. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Evidence in proof of a crime could be direct or circumstantial. There is no particular form that evidence should take to prove a crime except that which is statutorily provided. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
The Police picked him same day. It is clear that he did not make that statement on the day of the incident, the police for reasons best known to them released him the following day without taking a statement from him. This is one reprehensible attitude of the Police who always assume that any time a woman is physically abused by her husband, it is normal and a domestic affair. What domestic affair allows of such physical and emotional abuse of a fellow human being? Sadly, many women have died because of the lackadaisical attitude of the police in promptly dealing with similar complaints. The police did not deem it necessary to take a statement even when she had such serious burns, thus released the Appellant on the 26th day of January, 2012 the day after the incident. The Appellant only made a statement on the 7th of February, 2012, when he had slept over the incident, ruminated and perfected his story line. So when he said he merely pushed the deceased, it was said almost 10 days after the incident. The argument of the Appellant is that the delay in taking his statement was because the Police believed it was an accident. The question is what law gave the Police such discretion? Me thinks it is just the unfortunate attitude of the Police to domestic violence. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Accident as a defence entails an unwilled act, an event which occurs without the fault of the person alleged to have caused it. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Were there material contradictions in the case of the prosecution? The materiality must touch on the ingredients of the offence, those elements the prosecution must prove to secure a conviction. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
The aspect so called is the dying declaration of the deceased that the trial Court accepted and believed. It is settled that a dying declaration must not take a particular form. It is not required that it must be a formal statement with all the contraptions of a legal document. It could be an oral statement and in most cases it is an oral declaration. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
A defence of accident suggests that the end result would be a surprise to every ordinary man of prudence, that is, a reasonable man. From the facts set out in this case, the defence of accident is not available to the Appellant. – NIMPAR, J.C.A. Ugbogbo v. State (2016)
Thus, an intention to cause grievous bodily harm is the mens rea for murder. – NIMPAR, J.C.A. Ugbogbo v. State (2016)