Frank Onyenankeya V. The State (1964) LLJR-SC

Frank Onyenankeya V. The State (1964)

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TAYLOR JSC

The appellant was tried on a charge of murdering his wife “in or about the month of May 1963.”

The evidence adduced by the prosecution amounted to this: The first prosecution witness, a six-year-old daughter of the appellant, saw the appellant hit the deceased on the head with an iron rod during a quarrel between the deceased and the appellant.

The date or month on which this took place she did, not depose to. The second prosecution witness performed a post-mortem examination on the 14th May, 1963 and put the possible date of death to between 24 and 36 hours previous to the examination. His evidence on the issue of the cause of death was of no value, for this is what he said:

“No external evidence of violence. There was an old scar seen in the left side of the skull. I cannot say the cause of death.”

The third prosecution witness also gave evidence that he saw the appellant hit the deceased on the head with an iron rod, and as to the date of the incident, he says it was about seven weeks before the identification of the body, which P .W. 2 said took place on the 14th May, 1963. Another eye witness to the act of the appellant was P.W. 4 who in addition to giving evidence as to the blow struck by the appellant, said:

“After this accused treated the deceased. Accused had another case with the Police at Umuahia, and was taken away, meanwhile the deceased had serious pain on the head as a result of the injuries. Pus was coming out from the ears and nostrils.”

In his evidence in Court the appellant admitted treating the deceased and said further:

“I gave her money for injection. She became well.”

He gave evidence of the cause of the dispute between himself and the deceased, but it is not now relevant, in view of the decision to which we came on the 2nd April, 1964, when we allowed the appeal, set aside the judgment and conviction of the High Court, entered a verdict of acquittal and said we would give our reasons later.

The trial Judge found the appellant not guilty of murder, but guilty of manslaughter. The point that arose during the hearing of the appeal was whether there was any evidence as to the cause of death, or to put it in another way, whether it was shown that the act of the appellant caused the death of the deceased. The trial Judge on this point held that:

“Although the medical evidence is silent as to the cause of death simply because Doctor Dissevelt who appears to be inexperienced did not do any dissection, I am satisfied from the evidence given that the deceased died as a result of the head injuries she received from accused. I have come to this conclusion from the evidence of the mother of the deceased who was living with her and swore that from the time she received the injury until she died deceased had always been in pains from her head. She was corroborated on this point by the daughter (1st P.W.) who appeared very intelligent. I am confirmed in this view also from the fact that it was not suggested by the defence that the deceased died from other causes. Medical evidence though desirable is not essential.”

It is good law that medical evidence is not always essential though desirable to prove the cause of death, but the evidence must in any case be such as to show that the death of the deceased was caused by the act of the appellant. We can find nothing in the evidence of the mother of the deceased and P.W. 1 which goes to establish this fact, and more so when one bears in mind that the deceased lived for seven weeks after the injury and during that time received treatment from the appellant, and an injection from someone else, which may very well have been the cause of death. The evidence of P.W. 4 that pus was coming out of the ear and nostrils supports this view depending on where the injection was given and the mode and manner in which it was given, not to mention the qualification of the giver. In this respect the case of Rex v. William Oledima 6 W.A.C.A. 202 is pertinent. There the West African Court of Appeal held that:-

“Now to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did.”

The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution. For these reasons we allowed the appeal and made the order to which we have already referred.

It should also be mentioned that Mr. Nwokedi, for the respondent, unable to support the conviction. 

Other Citation: (1964) LCN/1148(SC)