Sunday Asumogha V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering The Leading Judgment)

The appeal arose from the decision of the High Court of Justice of Lagos State (the court below) whereby it convicted and sentenced the appellant to death for the murder of a Mr. Ikechukwu Idoko contrary to section 319 of the Criminal Code Cap 17 (volume 2) Laws of Lagos State, 2003 (CAP 17 of 2003).

In a nutshell, the deceased had been an apprentice trader under the appellant, his master. He had lived with the appellant in the same premises at No. 14, Oduloju Street, Cele Alaba International, Lagos. The deceased was to serve the appellant for six years. He completed the six years of apprenticeship. The deceased was to be released from the apprenticeship in 2006. The appellant refused to release him. The deceased continued the apprenticeship.

Police investigation through some eye witnesses who were not called to testify indicated that the appellant had a quarrel with the deceased for returning late in the night to the house on the fateful day of 9-07-07. That in the course of the quarrel a fracas ensued between the appellant and the deceased. The appellant was said to have pushed the deceased. The push caused the deceased to fall from the balcony of the second floor of a two storey building. The said fall made the deceased unconscious.

According to PW1, a medical doctor, operating a clinic about 50 metres from the said premises, the deceased was brought to his clinic in a state of comatose and gasping in the night of 9-7-07. The deceased bled from the ear and the nose. PW1 concluded the deceased had a fracture at the base of the skull or had head injury. PW1 gave the deceased first aid treatment. From there PW1 referred the deceased to Lagos University Teaching Hospital (LUTH).

The appellant and the four other persons that brought the deceased to PW1 took him to LUTH. About the morning of 10-07-07, they brought back the corpse of the deceased with the story that there was no oxygen to manage the deceased at LUTH, so they decided to take the deceased to Ikeja Teaching Hospital where he died on the way. PW1 stated that his hospital which was a primary health care facility had no mortuary, so the deceased was taken by the appellant and the four other persons for autopsy at another medical facility.

PW3, a consultant pathologist and specialist or morbid anatomist, did the post mortem examination on the deceased on 10-07-07. He observed that the deceased had external injury comprising bruises and contusion on the right shoulder. The injury extended to the upper hand. According to PW3 there was no other external injury.

PW3 stated that upon opening the body they saw fracture of the 5th rib on the left side and collection of about 50 milles of blood on the left side of the chest cavity and collection of 200 milles of blood in the brain. PW3 also stated that the head had no external injury. PW3 opined that the cause of death was due to massive haemorrhage to the brain caused by “blunt forced injury”.

The appellant’s version was that the deceased was his apprentice and used to stay with him. That the deceased came back to the house late on 9-7-07. He punished the deceased by kneeling. While the deceased was on his knees, he went into his room. Within a short interval one of the appellant’s brothers rushed into his room to inform him the deceased was seen lying on the ground floor. He went to the scene.

There the appellant discovered the deceased unconscious. He took the deceased for medical treatment. The deceased did not recover consciousness. He died. The appellant concluded the deceased jumped to his death from the balcony of the two storey building where they lived.

The court below accepted the version of the respondent. It found the appellant guilty of murder and convicted him as charged. The appellant was unhappy with the decision of the court below. He filed a notice of appeal with eight grounds of appeal on 5-11-10, questioning the decision.

In a brief of argument dated 10-3-11 and filed on 14-3-11, the appellant distilled these issues for determination –

“2.1 (a) Whether the testimony of PW3 (consultant Pathologist) was direct evidence and could be relied upon to establish the guilt of the Appellant.

(b) Whether the evidence proffered by the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.