Okoagwu Azu v The State (1993) – SC


Okoagwu Azu v The State (1993) – SC

by Branham-Paul C. Chima

Supreme Court – SC. 131/1992

Thursday, July 15, 1993


To qualify as an expert under the Act the witness must be specially skilled in the field in which he is giving evidence and whether or not a witness can be regarded as an expert is a question for the Judge to decide; the decision must be based on legal evidence before him. As Sir Verity, CJ (Nigeria) put it in Ajani v. The Controller of Customs 14 WACA 34 at 36: “It is clear, I think, that the test must always be the knowledge and experience of the particular witness and whether the evidence justifies the conclusion that he is ‘specially skilled’ within the meaning of the Evidence Ordinance, which means no more than that he has special knowledge, training or experience in the matter in question.” — Ogundare, JSC.

Be that as it may, however, it is now well settled that as much as medical evidence is desirable to prove the cause of death in homicide cases, it is not a sine quo non. It has been laid down in a long line of cases that cause of death can be established by sufficient evidence. other than medical evidence, showing beyond reasonable doubt that death resulted from the particular act of the accused. See Akpuenya v. The State (1976) 11 S.C. 269, 278. In Lori v. The State (1980) 8-11 S.C. 81 at 97. — Ogundare, JSC.

In Adamu v. Kano Native Authority (1956) 1 F.S.C. 25 (1956) SCNLR 65 the Federal Supreme Court held that the Court could infer cause of death from the circumstances surrounding the death where there is lack of medical evidence. See also Ayinde v. The State (1972) 3 S.C. 153; Edim v. The State (1972) 4 S.C. 160; and The State v. Edohor (1975) 9-11 S.C. 69 in all these three cases, the body was not even found but this court held in each one that the fact of death was provable by circumstantial evidence. See also Essien v. The State (1984) 3 S.C. 14 where Bellow, J.S.C. (as he then was) observed:- “It is trite law that although medical evidence as to the cause of death is desirable, it is not essential in all cases of homicide. Where medical evidence is not available as to the cause of death, the court may infer the cause of death upon circumstantial evidence adduced before it.” — Ogundare, JSC.

I have given careful consideration to the contradictions and inconsistencies highlighted in appellant’s brief. The law is clear. It is not every contradiction in the evidence of witnesses called by a party that is fatal to the party’s case but only those contradictions on material points – Nasama v. The State (1979) 6-9 S.C. 153; R. v. Ekanem 5 F.S.C. 14, (1960) SCNLR 42; Kalu v. State (1988) 4 NWLR (Pt.90) 503. — Ogundare, JSC.

Ogundare, J.S.C.

Chief E. Ume Ezeoke.

N.U. Chianakwalarn (Miss) Ag. D.P.P. (Abia State).

The appellant on 23rd November, 1987 went to the house of one Emmanuel Agwu, P.W.5 at Amachi Afikpo where the latter’s wife, Beatrice Ewa (P.W.1) ran a food restaurant. The appellant made an order for food and was served by P.W.4 Patience Ewa, daughter to P.W.1. Appellant however complained that the meat in the food was not only small but bony. Upon this complaint, P.W.1 instructed P.W.4 to add another piece of meat for the appellant which P.W.4 promptly did. Appellant however, got up from where he was sitting, went into the kitchen without the permission of either P.W.1 or P.W.4, opened the meat pot and unilaterally helped himself to a piece of meat. As he was about to put the meat in his mouth, P.W.1 knocked the meat from his hand and it fell down. The appellant thereupon slapped P.W.1 who started crying. Egwu Ewa P.W.1’s son on hearing the cry of his mother went to the scene and asked the appellant why he slapped his mother. The appellant picked a kitchen stool and hit P.W.1 on the head; P.W.1 slumped to the ground and shouted. Ude Agu (the deceased) was attracted to the scene by P.W.1’s shout. The deceased also enquired what was happening. The appellant hit him with the same kitchen stool that he had used on P.W.1 and he too slumped exclaiming that the appellant had killed him. He was rushed to the hospital but died on the way. In his defence, appellant admitted throwing a kitchen stool at P.W.1. He also admitted that P.W.1, P.W.4 and P.W.6 were present at the time. He gave his own account of what happened on the fateful night and claimed that one Nnachi was present at the time. He denied that it was the kitchen stool tendered in evidence he used on the night of the incident. He denied knowing the deceased and claimed that it was about 2 to 3 hours after the incident he learnt that someone died. His witness, Ndubu Eze Egwu gave an account of what happened on the fateful night. He testified that the appellant complained that the meat served him was bony. The meat was shown to the witness who found that the meat was bony. In his evidence about what happened on the fateful night, he testified that at a stage the appellant ran away and that it was after the appellant had gone away that P.W.1 hit the deceased on the head with the stool and that he helped to put the deceased in a vehicle that took him to the hospital. In short the evidence of this witness was to the effect that it was P.W.1, and not the appellant, that hit the deceased on the head with a stool resulting in the death of the latter.

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The appellant stood trial before the High Court of Imo State in the Afikpo Judicial Division for the murder of one Ude Agwu. He pleaded not guilty to the charge. At the trial the prosecution called eight witnesses and closed its case. The appellant testified in his own defence and called a witness. At the close of the defence and after addresses by learned counsel for both the defence and the prosecution, the learned trial Judge in a reserved judgment found the charge proved and convicted the appellant of the murder of Ude Agwu. He was sentenced to death by hanging. Dissatisfied with this judgment the appellant appealed to the Court of Appeal (Port Harcourt Division). That Court dismissed the appeal. He has now further appealed to this court upon four grounds of appeal.


I. Whether the prosecution has proved its case beyond all reasonable doubt in the light of obvious and material contradictions and inconsistencies in the evidence and statements of the prosecution witnesses?

“I have examined the evidence of P.W.1 and her statement to the police. Exhibit A and can find no such contradiction in the two that can be said to vitiate the evidence of the witness. Nor can I find any contradiction in the evidence of P.W.2 and his statement to the police. True enough, he did nor mention the names of P.W.4 and P.W.6 in his statement to the police. Neither did he do so in his evidence. He testified, under cross-examination, thus:- “I cannot say whether Patience Ewa and Egwu Ewa were at the scene on that day. That place was confused that time.” I cannot see anything in his statement, Exhibit B that is inconsistent with his evidence at the trial. I have also examined the evidence of P.W.3 which learned counsel for the appellant complained about. I find no substance in the complaint; the sentence that gave rise to the complaint was taken in isolation. The witness, under cross-examination, testified:- “I did not see the P.W.2 as 1 reached the scene. It was after the commotion had calmed down that I looked round and saw P.W.2.” (Italics is mine) The witness’s evidence clearly confirmed that P.W.2 was at the scene. It is correct to say that there is contradiction in the evidence of P.W.4 vis-‘E0-vis her statement to the police, Exhibit C as to who slapped the other as between Egwu Ewa and the appellant. But this contradiction is rather minor and did not affect the material issue before the trial court which was: who inflicted the injury on the deceased that led to his death P.W.7. Cpl. Bassey John was the investigating Police Officer. He was not at the scene when the incident took place and came to the picture after a report had been made to the police and he was assigned to investigate. His evidence that- “I found that the people were engaged in a free for all fight. Nobody told me that it was a free for all fight. I found that out from my investigation.” is clearly worthless, he not being present when the event took place nor did he disclose from which investigation he came to his conclusion more so that the evidence and statements of prosecution witnesses that were present went the other way. Similarly his testimony, that:- “No one could tell me how the deceased sustained the injury from which he died.” does not accord with written statements taken by the witness from eye witnesses of the event. His evidence to the effect that:- “I was present when the doctor was performing autopsy on the deceased. I did not observe any injury on the deceased.” betrays the reluctance of the witness to be candid with the trial court. The doctor, P.W.8 in his evidence deposed:- “I examined the corpse fresh. I found that the deceased had bleeding from the nose, ear and mouth.” It is not surprising that the learned trial Judge made the following note in his record book:- “COURT This court remarks that this witness gives this court the impression that he is not prepared to speak the truth. The witness has been warned that he is not discharged from this case and that he must continue to attend this court until he is discharged.” The learned trial Judge had this to say in his judgment:- “Mr. Okor had submitted that there were material contradictions in the evidence of the P.W.1 and P.W.2 and their statements to the police exhibits A and B respectively. Exhibit A shows that the P.W.1 told the police that when she was slapped by the accused and she cried the P.W.6 came into the kitchen and held and slapped the accused. This she denied under cross-examination. The issue in this case is who hit the deceased and was the deceased involved in a fight where the accused was defending himself I hold that the denial in court of part of the content of exhibit A does not affect the credibility of the P.W.1 in this case. I hold the same view in respect of the testimony of the P.W.2 and Exhibit B.” I am in complete agreement with the views expressed in the passage above. I can find no such contradictions or inconsistencies on material points in the evidence for the prosecution that could vitiate the conviction of the appellant for the offence of murder for which he was charged.”
II. Whether medical evidence was necessary in this case to prove cause of death. If the answer is ‘yes’, whether P.W.8 was an expert within the meaning of Section 56 of the Evidence Law Cap. 49 Vol. III, Laws of the Eastern Nigeria 1963, and competent to give expert opinion?

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“Giving evidence at the trial, P.W.8 said:- “My name is Dr. Gabriel A. Idam. I live at Amashiri in Afikpo Local Government Area. I am a medical practitioner.”
He was not cross examined on his claim to be a medical practitioner. The learned trial Judge appeared to have accepted him as such. Indeed the issue was not raised at the trial court and when it was raised at the Court of Appeal, that court per Onu, J.C.A. (as he then was) said:- ‘I will commence the consideration of the argument proffered in Issue A by firstly dealing with the expert evidence of P.W.8. For evidence of a person to be regarded as that of an expert it must conform with the provisions of Section 56(1) which provides:- 56(1) When the court has to form an opinion upon a point of foreign law or custom, or science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons especially skilled in such foreign law, local law or custom, or science or art, or in question as to the identity of handwriting or finger impressions, are relevant facts. (2) Such persons are called experts.’ I agree with learned counsel for the appellant’s submission that apart from the designation, doctor, given to P.W.8, there is no evidence that he is specially skilled in the science of medicine strictly in conformity with Section 56(2) of the Evidence Act. This is particularly true as there is no evidence as usually would be in proceedings of this nature wherein the qualifications, the name and address of the hospital where he was employed and his status in such hospital should be stated.’
I agree with the above views expressed by the learned Justice of the Court of Appeal. I hope prosecutors and other counsel would take note of what they must establish before holding out a particular witness as an expert. That does not appear to have been done in this case. P.W.8 ought to have been asked of his qualifications and experience before proceeding to give his evidence on the autopsy he carried out on the corpse of the deceased.”

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“Having regard to the evidence available in the case on hand, there can be no doubt that there is strong circumstantial evidence establishing the fact that the deceased died as a result of the injury sustained by him when he was hit with a wooden stool. Even if therefore the medical evidence of P.W.8 is disregarded, as it is being urged upon us by learned counsel for the appellant, on the evidence of the other prosecution witnesses and D.W.2 (appellant’s own witness) who claimed he was present at the time of the incident, the death of the deceased was clearly due to the injury he sustained when he was hit with a wooden stool.”
III. Whether there was a free for all fight between the appellant and members of the deceased’s family. If the answer is in the affirmative, whether the defence of accident, self-defence and provocation could avail the appellant?

“It is sufficient to say in answer to points raised on this issue that firstly there was no fighting, let alone a free-for-all one between the deceased and the appellant. The deceased did not offer any provocation to the appellant. Hence, all the extracts from the trial court’s Record in relation to what for instance P.W.1, P.W.2, P.W.4, P.W.6 and P.W.7 said as well as to what the trial court observed in relation to a free-for-all fight, provocation and self defence, have no relevance to what took place between the deceased and the appellant. Secondly, even if the appellant was provoked by P.W.1, P.W.4 and P.W.6, such provocation offered by them did not warrant the killing of the deceased or any other person who did not participate in the misunderstanding. See Sunday Omeninu v. The State (1966) NMLR 356 where the Supreme Court dismissed the appeal of the appellant who killed his child on the pre that his mother had earlier provoked and injured him on the neck and the child had used words which also provoked him. Nor can defence of accident avail the appellant in the instant case – See Ogwu v. State (1990) 3 NWLR (Pt.139) 484. The defence of self defence can only avail the appellant if he proved that at the time of calling the deceased he had reasonable apprehension of his impending death or grievous harm from the deceased and that it was necessary to use force to free himself which resulted in the death of the deceased. In the instant case, there was no evidence to show that the appellant was in fact assaulted by the deceased. See Nwuzoke v. The State (1988) 1 NWLR (Pt.72) 529 at 534.”
“In the light of the findings of fact made by the learned trial Judge, which findings, are adequately supported by the credible evidence accepted by him, I have no reason to disturb any of the conclusions reached in the passages above. In the net result, I find no substance in this appeal which I accordingly dismiss: I affirm the judgment of the court below.”


Section 57 reads: “57(1) When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in question as to identity of handwriting or finger impressions, are relevant facts. (2) Such persons are called experts.”



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