Sunday Omonuju V. The State (1976)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C.

Charged with the offence of Murder of Margret Imo on the 8th day of March, 1974, the Appellant was convicted and sentenced to death on the 12th of May, 1975, by the High Court (AGUTA .J.) of Imo State (then East Central State) and he now appeals from the said judgement.

The facts in support of the case for the Prosecution which the learned trial Judge accepted were, briefly, as follows:

On the evening of 15th December, 1973, the Appellant assaulted the deceased following her failure or inability to report immediately to the Appellant who summoned her. The deceased who was at the time expecting a baby was having her meal when the Appellant called her from outside her house and in reply she said she would report to the Appellant immediately after taking her meal. Angered by her delay in reporting to him the Appellant rebuked the deceased and struck her violently on the head with a mortar pestle (Exh.G) which he picked from the receptacle lying nearby.

The deceased immediately fell on the ground but the Appellant kicked her violently on the stomach with his foot. She was seen soon after to bleed from the head and the vagina. Later that evening she was taken to the Awo-Omama Community hospital after she had first been taken to the Police Station at Mgbidi where a report was duly lodged.

She was admitted as an in-patient at the Awo-Omoma Community hospital and although she was discharged three days later and was asked to report and did report, regularly for further treatment as an out-patient for a period of two months after which she suffered from “severe headache and pain in the stomach”, she was obliged to be re-admitted into a hospital (this time at the Catholic Mission hospital at Ihiala) on the night of 8th March, 1974; that night she aborted a foetus just before her death within hours of admission.

In his own Defence the Appellant denied striking the deceased on the head with Exh.G; he also denied that he gave the deceased a kick in the stomach. The Learned trial Judge, however, did not believe the account he gave in his Defence of a fight between the deceased and his wife (who was then three months pregnant) in the course of which he struck the deceased accidentally with a torchlight as he endeavored to separate both of them.

There was also evidence which the learned trial Judge accepted that as the Appellant attacked and assaulted the deceased he did so with reckless abandon and boasted that he could not be bothered with the consequences of the assault. The medical evidence before the lower court to which we shall refer later was not entirely satisfactory.

However, the question in this appeal is whether the deceased died as a result of he action of the Appellant or, put differently, whether the Appellant’s unlawful act was the direct cause of the death in the case in hand; and consequently the issue for our determination is whether, given the facts in this case and the state of the medical evidence, there was sufficient nexus between the assault by the Appellant and the cause of deceased’s death as would make the Appellant liable for the offence with which he was charged.

The report (Exh.F) of the medical officer (at Awo-Omoma Community hospital) who saw the deceased on 17th December, 1973, two days after the assault confirmed that she had a lacerated wound on the left side of the head; although 3 months pregnant, at the time, she was bleeding from the vagina and in the doctor’s opinion the bleeding was consistent with a violent assault (such as a kick) on the stomach. The only evidence of the condition of the deceased immediately prior to her death was that of Dr. Chidume P.W.3, the consultant surgeon at the Catholic Mission Hospital Ihiala where the deceased died on 8th March, 1974, shortly after aborting a foetus” within a few hours of her admission. The evidence of the doctor, however, was not helpful because his testimony (which should not have been admitted in evidence being, indeed, “hearsay”) derived from a report in the hospital record(which he neither kept nor made. His opinion as to the cause of death, based as it was on the said record (i.e. the “hospital record), was in so far as it was intended to establish the cause of death in the case in hand, certainly inadmissible. The only other evidence that has any relevance on the subject was that of Dr. Felix Nwalusi of the General Hospital Owerri (P.W. 4) who performed the autopsy on the 12th of March, 1974, four day after the death of the deceased but three months after the date of the assault on her. According to P.W.4 the autopsy revealed that the deceased who was 20 (twenty) weeks pregnant had “no traumatic injury to the cervix; “the uterus was of normal size” but “she was bleeding per vagina”.

P.W.4 then certified the cause of death to be “sub-partum haemorrhage” (and this expression according to the doctor, means that “there had been some bleeding in the vagina for some time before death”). Under Cross examination the doctor said

(1) that deceased could have bled for some four to five days before her death,

(2) that “the bleeding could have been caused “by some mechanical factor which could have occurred prior to the vaginal bleeding”; but he did not (and was not even question on the issue) say that this mechanical factor could not have occurred before the 15th December, 1973, (the date of the assault by the Appellant on the deceased). Although the doctor (P.W. 4) said that the abortion which occurred immediately before the death of the deceased “could not have been natural” he did not say (and, not having examined the deceased earlier, was not in a position to do so) that it had any connection with the assault on the deceased by the Appellant on 15th December, 1973. There certainly was no such evidence and the facts in this case do not allow for any legitimate inference that such was the case.

On the issue relating to “cause of death” in this case the Learned trial Judge observed:-“The whole of the evidence of this witness (i.e. the doctor P.W.4) accords with the Prosecution”s case, re-in forces Exh. F “the report of the doctor who first saw the deceased after the assault” and thus renders certain, in view, the cause of death. (brackets and underlining supplied).