Solomon Ehot V. The State (1993)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

The appellant, Solomon Ehot was tried for murder of one Dickson Ejah at Akpet Village, Akamkpa, Cross River State, on the 4th day of December, 1977. The medical report on the Corpse of Dickson Ejah indicated a deep wound on his upper arm led to severe loss of blood and as a result he died of hemorrhage. The wound was caused by the appellant who at the burial of his sister, suddenly stabbed the deceased on the hand.

He died not long after due to severe loss of blood. Some of the witnesses who were near the scene had to wrestle with the appellant to disarm him of the pen-knife, the weapon of the murder. On hearing that the victim of the stabbing had died, the appellant fled the village for Abak where he was subsequently arrested. The appellant made a voluntary statement to the police which he at the hearing denied ever making.

Learned trial Judge on considering the objection raised to the voluntary statement on submission that the appellant never made the statement, ruled the statement was admissible because it was his belief the appellant made it. No further issue was made of this statement again except now in this court. The High Court trial ended in his conviction for murder under S.319 (1) Criminal Code Law of Cross River State and he was sentenced to death by hanging. He appealed to the Court of Appeal, Enugu Division where his counsel in a well articulated Brief of Argument concluded as follows:

“With respect, the appellant’s counsel will re-iterate that on facts and in law he has nothing to urge in favour of this appeal. The conviction of the appellant by the learned trial Judge of Calabar High Court was therefore in order. There is no need to add other grounds of appeal in the circumstances.”

Learned state counsel for the respondent in that appeal agreed with the appellant’s counsel. The Court of Appeal in reserved judgment found no reason to disturb the decision of the trial court and dismissed the appeal.

On appeal to this court, the appellant filed amended Notice of Appeal and with leave of Court, grounds of appeal on issues not raised in the court below. Thus we have the following grounds of appeal:

GROUNDS OF APPEAL

1. The Court below erred in law/on the facts in supporting the trial Court’s conclusion that the offence of murder charged was proved “Beyond reasonable doubt” against the Appellant, when there was either no evidence (and/or alternatively, no sufficient evidence) in proof of some of the vital and statutory constituent elements of the offence of murder to justify the said adverse conclusion.

Particulars of Error

(As to “Cause of Death”/ “Identification of the Body of the Victim”)

(a) (i) The medical evidence upon which the prosecution purported to rely in proof of the cause of death, and of the identity of the body of the alleged victim is of little or no probative value as to those facts, in that neither did its alleged maker give evidence in Court, nor do his said “Post Mortem report” and an alleged “Forensic Report” [if any] form a part of the Record of proceedings upon which the Appellant’s conviction is sought to be affirmed.

(ii) The other evidence adduced by the prosecution in attempted proof of the cause of death, and of the identity of the victim, is tenuous and/or speculative.

(iii). Having regard to the combined/separate premises of (i) and/or (ii) above, and on the available evidence, the court below was in no position to confirm either that the person to whom references were made in court was the very victim alleged to have been killed, or (if his identity was sufficiently proved), that the Appellant’s act directly “could have caused”, or that the Appellant’s act “directly” (or “substantially”) did cause the victim’s death, to the exclusion of all other causes.

(iv). In the absence of the required proof of identity of the victim, and in the absence of proof of death as a result (either direct or substantial) of the Appellant’s act, the only verdict which the court below could safely have entered was one of an acquittal in the Appellant’s favour.

[As to “Intent to kill”]

(b) (i). Upon a dispassionate view of the totality of the evidence (i.e. both prosecution and defense) adduced, the inherently implicit finding that the Appellant either “desired”, (or alternatively) “had reasonable foresight” either that the death of, (or grievous bodily harm to), the victim was the likely or probable result of his act) if any, must be the subject of some doubt, and the support given by the Court of Appeal to that finding ought therefore to be disturbed.

2. The Court of Appeal erred/misdirected themselves both in law, and on the facts when they held “inter alia” as follows:

“………………. it seems to me that there was ample and strong circumstantial evidence from P.W.1, P.W.3 and P.W.4 from which it could be inferred that it was the Appellant who stabbed the deceased ………………….” and, “on the whole, it seems clear that the Appellant was rightly convicted (on his confessional statement)…….which was amply corroborated by other evidence on record”.

Particulars of Error/Misdirection [Of Law]

(a) (i). The fact that the Appellant “stabbed” the victim, (albeit never in issue), falls far short of comprising proof of the constituent elements of the offence of murder charged, which fact (by the judgment below complained about herein) it seeks/purports to establish.

[On The Facts]

(b) (i). All the evidence on the printed record upon which the conviction by the trial court is founded is “circumstantial evidence”, and the Court of Appeal ought to have found that the entire evidence is not of such a cogent, unequivocal and compelling nature as to point irresistibly to the conclusion that the Appellant’s act caused to have been killed.

3. The Court of Appeal erred in law in giving support to the Appellant’s conviction by the trial court in so far as it was based (either wholly, or in part) on various confessions/admissions said to have been conceded by him in an extra-judicial statement which he made to the police(as further alleged).

Particulars of error of Law

(i). During trial, objection was taken to the reception of the said statement in evidence not only on the ground that the Appellant never made it, but on the additional (or alternative) grounds “inter alia” that it was not made in voluntary circumstances, (if made by him at all).

(ii).The relevant decisions of the trial court (i.e. by its ruling dated 4-3-82, and its judgment dated 1-6-82) made no attempt to address these vital alternative issues,which error is also manifest upon the face of the judgment of the court below.

(iii). In the absence of any opinion of the court below on the effect that the failure by the trial court to hold the usual “trial-within-trial” would have had on the admissibility of the statement, there is justifiable doubt as to the conclusion they may have reached on the point.

(iv). Having regard to the above premises, and as the contents of the said statement constitute the primary reason for the Appellant’s conviction, the doubt referred to in (iii) above must be resolved in favour of the Appellant’s acquittal.

4. The court below erred in law by perpetuating the failure of the trail court to give any consideration whatsoever either to plea of “self defense” expressly raised by the Appellant, (this being a complete answer to the offence of murder charged), or to any other defense which may have been available to him, which error has occasioned a grave miscarriage of justice.

Particulars of Error:

(i). The plea of “self-Defense” was not only expressly raised by the defendant in his evidence in court, but satisfactorily so raised (having regard to the onus and standard of proof required of him by law).

(ii). The prosecution failed to elicit any evidence (either in cross examination of the Appellant’s said evidence in discharge of the legal and evidentiary burden that had clearly shifted to them in law.

(iii). Neither court below considered the issue, by the reason of which both courts below abdicated their judicial duty to consider all defenses open to the Appellant, he being a person confronted with murder charge.

(iv). Neither court below directed itself as to whether the Appellant’s said evidence of “self defense”, when examined in combination with the other matters raised by him as contained in his extra-judicial statement [if adjudged admissible] constitute circumstances that justify an enquiry into whether the defense of “provocation” was disclosed.

(v) Had the Court below considered the whole evidence on these issues, they may have been convinced of the innocence of the accused, or may have been left in doubt as to whether he was acting in self-defense, or may have found an issue of “provocation” (in the combined circumstances described above).

(vi) By reason of the said omissions of the Court below, there is considerable doubt as to what verdict would have been arrived at by both courts below after due enquiry which doubt must be resolved in favour of the accused.

5. The decisions of both Courts below are unwarranted, unreasonable, and cannot be supported, having regard to the evidence.”

As elaborate as the grounds of appeal are, it is noteworthy that only one issue is formulated for determination in the appellant’s Brief of Argument as follows:

“Whether or not the prosecution established this, appellant’s guilt beyond reasonable doubt at trial (as required by law).”

The justice of this appeal demands dwelling not only on the issue formulated in the Brief but also adverting fully to the grounds of appeal. But before doing this, it is pertinent that the facts of this case be summarized. One Mary, sister of the appellant, died and her corpse was taken to the village square for the funeral rites. The appellant, Solomon Ehot, was among the gathering at the square, so also was the deceased, Dickson Ejah. Suddenly the appellant attacked Dickson Ejah with a knife. Some of the men around, after some struggle, overpowered the appellant and recovered the knife from him; the knife was still dripping with blood. The deceased was taken into the house with a trail of his blood from the square leading into the room. He later died. The stab wound was on his left upper arm at the lateral aspect. The P.W.1, Sunday Ejah, a brother of the deceased, identified the body to the medical officer, Dr. Koofreh who performed the post-mortem examination. The medical officer issued a report, Exhibit 1, which was tendered because he was out of the country on course. Had he been present, his report would hardly be needed except to refresh his memory. The death occurred on 4th December, 1977 and it was only on 5th December, 1977 at about 11.45 a.m. that the doctor performed the post mortem examination. His report says as follows:

“Middle-aged man (with) 1/c stab wound (on the left) It upper arm lateral aspect. Body and feet covered with dried blood. Clothing and towel tourniquet blood soaked. No abnormalities were discovered in the internal organs. I certify the cause of death in my opinion to be olegaemic shock secondary to hemorrhage.”

The defense never requested for the presence of the medical officer for Cross-examination on his certificate and on the face of the certificate the cause of death is clearly stated. This report of the medical officer is the certificate envisaged by Medical officer in the service of a state for the purposes of undertaking post-mortem examinations is a pathologist and his certificate is sufficient evidence of the facts stated therein. The proviso to S.41(1) (a) of Evidence Act availed the appellant at the trial court but advantage of it was never taken there nor in the Court of Appeal. Exhibit 1 clearly showed the cause of death was due to shock arising from hemorrhage. There was no other internal injury that could have contributed to the deceased’s death. Sunday Ojah, P.W.1, testified that he identified the corpse to the medical officer before the post-mortem examination was performed.

This case is far different from Kato Dan Adamu v. Kano N.A. (1956) 1 FSC 25; (1956) SCNLR 65 cited by learned counsel for appellant as there was ample evidence of the corpse being identified to the medical officer and medical officer’s certificate, Exhibit 1, is very clear as to the nature of injuries found and the actual cause of death. The submission by learned counsel that the body was not found is not supported by any evidence; rather what is clearly shown on the record is that the body of the deceased was identified to the medical officer and it was examined and reported upon.

The next question is: who stabbed the deceased The evidence before the trial court is very clear. There was commotion in the village square, the deceased was stabbed and he was covered in blood and the appellant held a knife dripping with blood and this was wrestled from him. He made a statement voluntarily to the police which was objected to at the trial court as “not having been made by the appellant or that it was not voluntarily made”. Learned trial Judge ruled on the first head of objection that the appellant really made the statement. The defense apparently abandoned the stand that the statement (Exhibit 4) was not voluntarily made. The statement reads as follows:

“I Solomon Ehot freely elects as follows: It was on 3rd day of December, 1976 that my mother died and again on 3rd day of December, 1977 my junior sister named Mary Ehot died too, as a result of that I went to Dickson Ojah a deceased now to tell me the reason why my sister should die the same day my mother died because he have already promised me that he is going to finish the whole of our family. As I went to him, he told me that he is not coming. I left his house with annoyance for my house, to come out again with a pen knife where I met him at our village square there I stabbed him with the pain knife on his left upper hand. As I wanted to go back to my house some people came and hold me and take the knife away from me, I entered my house and collected my shirt and left to report myself to police at Akpat central. As I was running to the Police Station, two boys from my village was running after me to catch me. As they catch me they take me back to the village. As I understood that Dickson is dead because of the stab I stabbed him, I left the village for Abak to report to my brother who is at Abak. What happened to me on 4th day of December, 1977. As I was reporting to him, the people in the yard heard it and reported to police at Abak and they came and arrested me. The knife I was shown by Cpl. Maxwell Okafor of D.C.I.C. Akamkpa was the knife I used in stabbing Dickson Ojah to death. The reason why I stabbed Dickson Ojah to death was that he was cause of my mother’s death and my sister own too. I know he is the cause of my mother and sisters death because he has already promised me that he is going to finish the whole of our family by means of witchcraft. As my sister died again the same date my mother died last year, I remember what he told me as a result of that I was annoyed that is why I stabbed him but I don’t know he shall die because of that stab wound I gave him on his left up hand. I did not message any body to message my sister anything as she alleged.”

The issue of voluntariness was therefore abandoned. The appellant went on in his evidence on oath to deny making the statement. An accused person, confronted in court by the prosecution that he made a statement voluntarily, must make his stand clear. Either that he did not make the statement in which case the court will rule after submission by both parties, or that it was not voluntarily made due to some duress, undue influence, coercion or some promises of temporal nature etc. In the former case the court may admit the statement in evidence and will assess its weight in the final decision; in the latter case, the voluntariness must be tried by what is commonly called “trial within trial” and if found to have been made voluntarily, it is admitted in evidence; if not it is rejected as evidence. In the present case the defense never made any move to insist that the statement was involuntarily made but seemed contented with the ruling on whether the appellant made the statement at all. In a long line of cases this court has explained this position and an accused person alleging that he did not make a statement should not be under an illusion that non est factum amounts to involuntariness. (R v. Igwe (1960) 5 FSC 55; (1960) SCNLR 158 Godwin lkpasa v. Bendel State (1981) 9 Sc. 7, 28; Obidiozo & Ors. v. The State (1987) 4 NWLR (Pt. 67) 748, 761). The position taken at the trial by defense was mainly that the appellant never made the statement. This was adequately ruled upon by the court and the issue of voluntariness was no longer pursued. Thus there was no need for trial within trial as issue of voluntariness was no longer before the trial court.

As for issue of self-defense, there was nowhere it was raised at trial court, nor was it on appeal. The matter of self-defense could be considered only if from available evidence that defense avails the accused person so that the court will advert to it. In his evidence on oath he alluded to a fight with the deceased but that he did not observe any injury on him and that he saw the deceased had a knife on him. Whereas in his confessional statement he clearly stated his motive for the savage attack with a knife on the deceased. His mother died on 3rd day of December 1976, exactly a year later, on 3rd day of December, 1977, and his sister, Mary, died too. For him the coincidence of dates was not an accident, there must be some unusual forces behind it and the deceased must be the one controlling those forces. That was why he decided to do something about it and he therefore stabbed him.

In his own words he said:

“The knife I was shown by Cpl. Maxwell Okafor (P.W.5) of D.C.I.C. Akamkpa was the knife I used in stabbing Dickson Ojah to death. The reason why I stabbed Dickson Ojah to death was that he was the cause (sic cause) of my mother’s death and my sister own too. I know he is the course (sic cause) of my mother’s and sister’s death because he have (sic) already promised me that he is going to finish the whole of our family by means of witchcraft. As my sister died again the same date my mother died last year, I remember what he told me as a result of that I was annoyed that is why I stabbed but I don’t know he shall die because of that stab wound I gave him on his left up hand (sic). ”

The sum total to the defense evidence certainly raises no issue of self-defense or provocation. The court of trial surely did not have anything to mitigate what the prosecution offered against the appellant.

The appellant, by his voluntary statement confessed to the stabbing of the deceased and gave a cogent reason for it. The deceased by medical evidence had blood all over his body, and by the evidence of witnesses at the scene so much blood was lost by him that a trail of his blood ran from the village square to where he was carried to and where he finally died. To stab with a knife is a dangerous thing and there is no other cause of his death apart from loss of blood (hemorrhage) due to the stabbing. There is nothing favourable to the appellant in his voluntary statement and in the prosecution’s evidence and it is not on all fours with decisions in Kada v. The State (l991) 8NWLR (Pt.208) 134, 150; Bakare v. The State (1987)1 NWLR (Pt. 52) 579, 590, 591; Itule v. The State (1961) 2 SCNLR 183, 187.

Learned counsel raised in his brief of argument a matter which though he never made an issue deserves some comment. As he put it:

“It is trite law that in its attempt to establish the cause of death in a murder trial, the prosecution is put to its election as to which of the known options [i.e. medical evidence, or by compelling circumstantial evidence) it will pursue”.

“Having so elected, their case on the issue must either succeed or fail on such evidence, and such evidence alone, since both the law and public policy restrain them strictly from going back on their election”.

With respect, I cannot find the relevance of the above statement. The prosecution’s case is that the appellant stabbed the deceased whereby deceased lost so much blood that finally caused his death. That was the gist of all their evidence.

There was evidence of stabbing and loss of blood, and then the medical evidence showed the cause of death. Clearly the prosecution showed it was the act of the appellant that led to the death of the deceased. It is only where there was no direct medical evidence that circumstances that lead irrevocably to the death of the deceased can be relied upon to decide the issue of whether the act of the accused had anything to do with the death. This case is straightforward enough that no circumstantial evidence had to be sought as to the cause of death as distinct from who was responsible for what caused the death. The case of Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457,467 has no relevance here.

In sum total, I find no merit in this appeal and it is accordingly dismissed. The decision of the Court of Appeal which upheld the judgment of trial court is hereby affirmed.

UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read

by my learned brother Belgore, J.S.C. There is no doubt that this appeal lacks merit. Accordingly, I agree with the said judgment and I too hereby dismiss the appeal. I affirm the decision of the Court of Appeal.

KAWU, J.S.C.: I have had the advantage of reading. in draft, the lead judgment of my learned brother. Belgore. J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that there is no merit whatsoever in this appeal. There was overwhelming evidence that without any provocation whatsoever, the appellant stabbed the deceased to death. In my view, on the evidence adduced at the trial, the learned trial Judge was right in coming to the conclusion that a case of murder was conclusively established against the appellant.

The appellant’s conviction was therefore proper and the Court of Appeal was also right in affirming his conviction and the sentence of death passed on him. I see no merit in the appeal and it is accordingly dismissed. The appellant’s conviction and the sentence of death passed on him are hereby affirmed.

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SC.106/1990