⦿ CASE SUMMARY OF:
Ugwuezumba Onwukiru v. The State (1994) – CA
⦿ LITE HOLDING
When there is a contradiction as to the weapon used in hitting a deceased, such contradiction is resolved in favour of the accused.
The burden in a criminal trial to prove the case is on the prosecution.
A medical report is tendered during cross-examination not examination-in-chief.
⦿AREA OF LAW
– Weapon used.
– Medical report.
(1995) 2 NWLR (Pt.377)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– D.C. Denwigwe, Esq.
* FOR THE RESPONDENT
– J.C. Igwe.
⦿ FACT (as relating to the issues)
In an information in charge No. HOG/2C/88 filed at the Oguta High Court of Imo State, the appellant was the first of the nine accused persons charged with the offence of murder contrary to section 319 of the Criminal Code, Cap 30, Vol. 11, Laws of Eastern Nigeria, 1963 applicable to Imo State. According to the particulars of the offence, it was alleged that the nine accused persons all of Uba Agwa in the Oguta Judicial Division did on 13th August, 1987 at Uba Agwa murder one David Njirizu hereinafter referred to as the deceased. At the trial, the prosecution called five witnesses and the accused persons one.
The case advanced by the prosecution may be epitomised as hereunder. On 7th August, 1987, at about 6 p.m., Chibuzor Nlemoha (PW1) was at his home in Uba Agwa eating. Suddenly, he heard a voice in Ibo saying “beat him, beat him”. He came out to see what was happening. He got to a nearby orange tree and saw the appellant (1st accused) as he slapped the deceased. As the deceased was shouting and asking what he had done, the appellant picked a piece of wood and hit the deceased on the head. The deceased fell down unconscious. The P.W.1 raised an alarm which attracted one Leonard Nnadike (P.W.3) to the scene. Both P.W.1 and P.W.3 carried the deceased to the base of a nearby tree. At the instance of P.W.3, P.W.1 sought for and called a relation of the deceased by name Chief Fidelis Ikwu (P.W.4) who on arrival at the scene and having seen the bad condition of the deceased went to lodge a report to the police and on the arrival of the police, the deceased was conveyed to a hospital known as the New Life Hospital, Agwa.
In his reserved judgment delivered on 28th July, 1993, the learned trial Judge Njiribeako J., convicted and sentenced the appellant to death while discharging and acquitting the other accused persons. Dissatisfied by that judgment, the appellant has now appealed to this court.
His notice of appeal contained only one ground of appeal but with the leave of this court, an amended notice of appeal was filed with the inclusion of five additional grounds of appeal.
1. Whether the conviction of the accused/appellant could be sustained considering the evidence adduced at the trial?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPLICANT BUT AGAINST THE RESPONDENT.
i. A fortiori, contradictions as to the weapon used in inflicting injury on the deceased, that is whether an iron fork or a piece of wood and on the part of the body hit, whether the head or stomach are in my humble view material contradictions.
ii. In the case under consideration, since the testimony of P.W.1 contradicts his previous Statement to the police Exhibit “A” in material respects, neither the testimony nor the previous Statement constitutes evidence on which the court could have acted in convicting the appellant. The fact that the P.W.1 might have been motivated by a desire to see that the accussed persons were not convicted does not justify a departure from this well settled principle. It seems to me therefore that since the evidence of P.W.1 that the appellant hit the deceased is unreliable and this being the only piece of evidence relied upon by the prosecution to link the appellant with the injury inflicted on the deceased, the prosecution had failed woefully to establish that it was the appellant that caused the death of the deceased. This conclusion is sufficient to dispose of this appeal in favour of the appellant but since this appeal raises the question of the evidential value of a medical report in proving cause of death, I am constrained to consider it.
iii. In the case under consideration, even if I should prefer to follow the decision in the recent case of Solomom Ebot v. The State (supra), I am still bound to consider whether the medical report Exhibit “L” was issued by a Government pathologist. There being no evidence on the printed record that Dr. Ihezue who issued it is a Government pathologist, I am constrained to hold that the said medical report Exhibit “L” was inadmissible and was wrongly admitted in evidence. That being the case, there was therefore no credible evidence before the court to establish that the deceased died of the injury inflicted on him on that fateful day.
S. 91(1), 42(1), s. 34(1) Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
It was recognised in the case of David Ifenedo v. The State (1967) NMLR p.200 that a medical report is inadmissible in evidence in examination-in-chief but only in crossexamination. In that case, the Supreme Court per Brett J.S.C. at p. 203 observed thus: “It appears from the deposition that at the close of his examination in chief, the doctor produced a report which he made on Form D in the First Schedule to the Coroner’s Act and that the report was received in evidence. It was clearly inadmissible at that stage. The doctor might properly have been allowed to refresh his memory from the report under section 215 of the Evidence Act and the defence would then have been entitled to see it and cross-examine on it, in which case it might have been produced in evidence but it ought not to have been produced in the doctor’s evidence in chief.” The above decision was followed by the Supreme Court in its later decision in the case of Owanso Agbeyin v. The State (1967) NMLR p.129. In the case of Oshuntaye v. Commissioner of Police (1960) WNLR 216 it was held that the admissibility of a medical report in lieu of medical evidence given at a trial by a doctor was wrongful and fatal to the case. The view has also been expressed that it is wrong to admit the medical report which is an expert opinion through a third party not only because it infringes the rule that the maker of a document be called for cross-examination but also because section 56 of the Evidence Law makes no provisions for that course.
As was stated by Aniagolu, J.S.C. in Adesujo Akinkunmi and 3 Ors v. The State (1987) 3 S.C. p. 152 at 168 (1987) 1 NWLR (Pt.52) 608, “It is better to err on the side of acquittal when facts presented in a case are inconclusive or leave one with a margin of doubt.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It has long been settled that where a witness makes a Statement which is inconsistent with his testimony, such testimony is to be treated as unreliable, while the Statement is not regarded as evidence upon which the court can act. – Edozie, JCA. Ugwuezumba v. State (1994)
It is trite law that where there are two conflicting decisions of a superior court, an inferior court is at liberty to decide which of the decisions to apply in a case before it: See Salmond on Jurisprudence 11th Edition p.207, Adegoke Motors v. Adesanya (1988) 2 NWLR (Pt. 74) 108, Onuoha v. Okafor (1983) 2 SCNLR 244 at 263.
To sustain a conviction for murder in this case, it must be established that it was the appellant who assaulted the deceased and that it was that assault that caused the death of the deceased: See R. v. Samuel Ahengowe (1936) 3 WACA 85; R. v. William Oledinma (1940) 6 W.A.C.A. 202; Frank Onyenankeya v. The State (1964) NMLR 34. – Edozie, JCA. Ugwuezumba v. State (1994)
A piece of evidence contradicts another when it affirms the opposite of what the other evidence has Stated not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. – Edozie, JCA. Ugwuezumba v. State (1994)