Abraham Njoku V. The State (1992)

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SYLVESTER UMARU ONU, J.C.A. 

Before Pats-Acholonu, J. in the Imo State High Court holden at Mbano-Etiti, the appellant, Abraham Njoku was arraigned for the offence of murdering his father, Mathew Njoku (hereinafter referred to as “the deceased”‘) on 31st January, 1984 at Umuezike Umuezeala Ama Mbano contrary to section 319(1) of the Criminal Code. Cap. 30 Vol.II Laws of Eastern Nigeria, 1963 applicable to Imo State. In a trial that lasted from 23rd June, 1988 to 4th November, 1988 where three witnesses, none of whom was an eyewitness in all testified for the prosecution and the appellant alone testified for the defence, the learned trial Judge convicted and sentenced the appellant to death.

The brief facts of this patricide are that on 14th January, 1984 at Umuezeala, Mbano, the appellant exchanged words with the deceased and as a result struck him (deceased) with a kitchen knife at the back. The deceased fell and was later rushed  to Geopath Inland Clinic, Ehime Mbano (Aba branch) where he was treated by Doctor George C. Ego Osuala, (PW1). After being referred to the University Teaching Hospital, Enugu, as a result of the injury received from the knife-stab, the deceased later died on 31st January, 1984.

After the trial of the appellant which was characterised by lack of counsel to represent him (two statements taken from him were in the interval tendered as confessional statements vide Exhibits ‘B’ and ‘C’ until a volunteer came in the person of E.C. Maraizu Esq., of counsel) had been concluded, the learned trial Judge as pointed out earlier, convicted him and sentenced him to death. Aggrieved by the said decision, the appellant has appealed to this court where he timeously filed his Notice of Appeal containing a lone ground of appeal, to wit: the omnibus ground. However, later with leave of Court, two more grounds of appeal renumbered 2 and 3 to follow the omnibus ground were filed attacking the decision.

Learned counsel for the appellant Mr. Chiobi Ekpechi representing Legal Aid Council and Mr. James Gozie Nzeh, Legal Officer, both filed and exchanged briefs of argument. The three questions formulated on behalf of the appellant consistent with the grounds of appeal are:

1. Whether the trial Judge was right in convicting and sentencing the appellant to death without any proof that the deceased was identified to the doctor who performed the autopsy by a person who knew the deceased when he was alive.

2. Whether the learned trial Judge was right to have based the conviction of the appellant on the purported confessional statements.
Exhibits B and C, without ensuring that there was some evidence, be it slight, of circumstances which make it probable that the confession was true consistent with Onochie & 7 Ors v. The Republic (1966) NMLR 307 at 308.

3. Whether the learned trial Judge was right in holding that the prosecution proved its case beyond all reasonable doubt when there were no eye-witnesses and the circumstantial evidence relied on, by the Honourable court, not being conclusive in consonance with the principle in R v. Onufrejezyk 39 CAR 1; R v. Tepper (1952) AC 480 at 489 and The State v. Omada Edobor (1975) 9-11 SC 69 at 75 -78.

At the hearing of this appeal on 12th February, 1992, learned counsel on either side adopted his brief of argument without any further expatiation or amplification, after which we reserved the case to today for judgment.

On question 1 which overlaps ground 2 of the appeal grounds, it queries whether the trial Judge was right in convicting the appellant for murder when the person who identified the corpse to PW1 for purposes of conducting the autopsy was not called as a witness. It is learned counsel for appellant’s submission, inter alia, that to establish that a crime has been committed the prosecution must prove that the body of the deceased on which PW1 performed autopsy on 1/2/84 was that of Mathew Njoku. This, it is argued, the prosecution failed to do. The case of The State v. Edobor (supra) was called in aid, adding that there is no evidence on record to show that the body P.W.1 performed autopsy on was indeed that of the deceased’s. After referring to excerpts in the trial court’s record, it is contended that the Levi Njoku said to have identified the corpse of the deceased to PW1 as that of Mathew Njoku did not testify as a witness, an omission which it is submitted is fatal to the prosecution’s case. It is further contended, that it is not enough for P.W.1 to say as he did in the instant case, that the body was identified to him by a person who was not called as a witness to testify. The cases of R v. Momodu Laoye & Anor (1949) 6 WACA 6 and The State v. Edobor (supra) were cited to buttress the contention, adding that the conviction cannot be sustained since the trial Judge was in error to hold that the appellant was guilty of murder, I take the view that the failure of the prosecution to call Levi Njoku as a witness is not fatal to their case. This is because even though before commencing his testimony before the trial court on 19th September, 1988 P.W.1’s memory had to be juggled, once he was allowed by court to refresh his memory by looking at the report in respect of the deceased, he no longer had any illusions as to his prior knowledge of the deceased, his autopsy on the over 70 year old man, his earlier treatment of him on 14/1/84 of the mortal stab on his shoulder blade allegedly inflicted by his son, the cause of death and how before Levi Njoku identified his remains to him, he had referred him to U.N.T.H. Enugu, for better medical attention. Hence, on 1st February, 1984 when the deceased’s body was before him for autopsy, the identity of the corpse was no longer strange to him regard being had to the over six days the deceased stayed under his Care and treatment at the Hospital. Geopath Inland Clinic, Ehime Mbano before he referred him to U.N.T.H. Enugu. There was therefore sufficient evidence adduced before the trial court as to the identity of the corpse of the deceased before the post-mortem examination. The absence of the evidence of Levi Njoku, whose evidence though was it adduced would have strengthened the prosecution’s case, is not in my view a necessity and so its exclusion not fatal. The Supreme Court held in Ukwa Egbe Enewoh v. The State (1990) 4 NWLR (Pt. 145) 469 inter alia that where the totality of evidence showed unmistakably that the body on which a doctor performed a post-mortem examination was that of the deceased, a separate witness though desirable is not a necessity. In that case, as in the instant case, the main issue before the Supreme Court was on the complaint of the appellant that there was insufficient evidence led by the prosecution before the trial court as to the identity of the body of the deceased examined by P.W.3 who performed the autopsy on the corpse. The contention was predicated on the fact that the person who identified the body could not be called to give evidence at the trial because he was dead, unlike in the case in hand. In the instant case, even though Levi Njoku is not shown to be dead and no explanation was infact offered for his absence from court, the evidence of P.W.1 standing alone, and whose patient the deceased was for some duration of time, was enough or pointed unequivocally to satisfying the trial court of the deceased’s identity as to leave no room for doubt. As Akpata, J.S.C. crisply put it with a stamp of authority and clarity in Enewoh’s Case (supra) at page 482 paragraph C – D:
“The position however is that 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 the deceased to a doctor is not a sine qua non in all murder cases. See Edim v. The State (1972) 4 S.C. 160.”
Indeed, as held in the above case, the identification of a deceased’s corpse could be by circumstantial evidence but such evidence must be cogent, direct and unequivocal. In the case on appeal, much as it is now well settled that where relatives of a deceased are alive, they are the best persons to identify the corpse to the doctor performing the post-mortem examination i.e that identification must be by persons who knew the deceased very well before his death as exemplified in Rex v. Momodu Laoye (supra); Asabiaro v. The State (1978) 4 FCA 47 at 49, Osarodian Okoro v. The State (1988) 5 NWLR (Pt.94) 255 and The State v. Edobor (supra), in the instant case where the deceased’s proximity as a patient of P.W.1 made identification infallible, the question of any mistaken identify or identity of the deceased being shrouded in doubt, no long arises.

The issue is therefore answered in the affirmative. Question 2 which is related to ground 3 of the grounds of appeal has two limbs. It firstly questions whether the trial Judge was right in convicting the appellant on the strength of Exhibit ‘B’ and Exhibit ‘C – the confessional statements of the appellant. Secondly, it asks whether the defence of insanity as raised by the appellant was properly considered by the trial Judge. I will consider the first limb of the issue first by setting out in full the evidence of P.W.3 which for its shortness and strategic importance in the appellant’s conviction in the court below is as set out at page 16, lines 23-34 of the trial court’s Record thus:

“My name is Corp. Bassey Idam No. 98627 attached to Mbano Police. I know one Sgt. Joseph Ogunshola – I worked with him. I am familiar with his writing and signature, Sgt. Ogunshola is now on transfer to somewhere in Lagos State. We made serious efforts to get him down here but to no avail. He investigated this case. Witness identifies some documents shown to him.

No objection was raised. The document (4) in number. The accused statements; crime reports.
Court: The statements of the accused person hereby admitted into evidence as Exhibits B and C respectively, while the Crime Report is admitted as Exhibit ‘D’,”

Now, it is the contention of learned counsel for the appellant that the learned trial Judge was wrong to have based the conviction of the appellant on Exhibits B and C without ensuring that there was some evidence, be it slight, of circumstances which make it probable that the confession was true, consistent with the Supreme Court decision in Onochie v. The Republic (1966) NMLR 307 at 308. It is further contended that from the totality of the evidence before the court it is an established fact that the appellant had a history of insanity, I shall shortly come to this point which as earlier stated, forms the second arm and bedrock of the issue under consideration.