The Attorney-general of the Federation V. Pius Ogunro & Anor. (2001)

LawGlobal-Hub Lead Judgment Report

DAHIRU MUSDAPHER, J.C.A.

In the High Court of Justice of the Federal Capital Territory Abuja, and in Charge No. FCT/HC/CR/1/96, the respondents herein, were arraigned before Saleh C.J on the following heads of charge:-

“1. That you, PIUS OGUNRO (m), 43 years of Area 1, Section 1, Block 1, Flat 6 Lapai Street, Garki Abuja, and EBENEZER OGUNMOLA (m), 43 years of Alfa Clinic Karu, Abuja, on or about the 12th day of September, 1995, in Karu, in the Federal Capital Territory, within the jurisdiction of the Federal Capital Territory Judicial Division, did conspire to commit an offence to wit; causing miscarriage on Miss Christiana Ngozi Eze, 19 years (now deceased) of Area 1, section 1, Garki Abuja, and thereby, committed an offence punishable under section 97, of the Penal Code and triable by the High Court.
2. That you EBENEZER OGUNMOLA (M), 43 years of Alfa Clinic Karu-Abuja, on or about the 15th day of October, 1995, in Karu in the Federal Capital Territory, within the jurisdiction of the Federal Capital Territory Judicial Division, committed an offence to wit you caused Miss Christiana Ngozi Eze (F), 19 year (now deceased), to miscarry by Carrying out an operation on her, as a result of which she died in December, 1995, and you thereby committed an offence punishable under S. 233 of the Penal Code and triable by the High Court.
3. That you Pius Ogunro (M), 43 years of Area 1, section 1, Block 1, Flat 6, Lapai Street, Garki, Abuja, on or about the 14th day of October, 1995, in Garki within the jurisdiction of the Federal Capital Territory Judicial Division, abducted one Miss Christiana Ngozi Eze (now deceased), and took her to Alfa Clinic Karu, with the intention of carrying out miscarriage on her, thereby, committed an offence contrary to S. 273 of the Penal Code and triable by the High Court.”

The respondents respectively pleaded not guilty, to the heads of charges. At the trial, the prosecution called five witnesses in proof of the charges, while in their defence the respondents called seven witnesses. At the conclusion of the evidence and address by counsel and in his judgment, the trial Judge Saleh C.J. on the 14/10/1997, discharged and acquitted each of the respondents, on all the heads of charge. Dissatisfied with the decision, the Attorney-General of the Federation, has now appealed to this court. It is with the leave of this court, that an amended notice of appeal, containing three grounds of appeal was filed. The grounds in the amended notice of appeal are:-

“1. The decision of the learned trial Chief Judge is unreasonable, unwarranted, having regards to the evidence adduced.
2. The learned trial Chief Judge erred in law when he held as follows:
I accept Exhibit 6 as a more convenient and relevant cause of death being case notes of Wuse General Hospital, where the deceased has been on admission for eighteen days before she died.”
PARTICULARS
a. Cause of death of a deceased person is not determinable by tendering case notes in Court.
b. The authentic way of determining a cause of death, is by way of tendering a post mortem report in court.
c. Post-mortem report produced without being influenced by what is contained in case notes, is more objective and will carry more evidential value.
3. The learned trial Chief Judge failed to give reason why he rejected Exhibit I as evidence of an expert.
PARTICULARS
a. DW1, DW4, DW5 and DW7’s evidence the trial Judge relied upon in rejecting Exhibit I are not evidence of a pathologist.
b. The evidence of PW1 being an expert evidence and uncontradicted by another expert evidence, ought to be believed and acted upon.”

In compliance with the provisions of Order 6 of the rules of this Court briefs of argument were filed and exchanged and at the hearing of the appeal learned Counsel proffered oral arguments in the elaboration of the submission canvassed in their written briefs.

But before the examination of issues submitted to this court for determination, it is necessary at this stage to state, be it in brief, the facts of this case. Miss. Christiana Ngozi Eze, aged 19 now deceased, was the girl friend of Pius Ogunro, the 1st respondent herein. As the friendship blossomed, Ngozi became pregnant. Pius Ogunro was happy and arranged for her ante-natal clinic, with the 2nd respondent Dr. Ogunmola of Alia Clinic at Karu Abuja. On the 8/12/95, when the 1st respondent took her to the clinic aforesaid, there was a problem of coughing and the 2nd respondent advised that she be taken to a hospital for tests to be carried out. The 1st respondent took her to the General Hospital Wuse, where she was admitted, until she died on the 25/12/1995.

When she was admitted, she was suffering from breathlessness and was in bad condition. She was admitted for eighteen days, before she died. She was advised to terminate the pregnancy in order to save her life but she refused. When she died, the Hospital issued a report indicating that Ngozi died as a result of congestive Cardiac failure. The family of the deceased, Mr. O. C. Akpa. PW5, complained to the Commissioner of Police Abuja, that the respondents committed abortion on the deceased and accordingly, rejected the medical report submitted by the General Hospital. Whereupon, a post mortem examination was ordered to be carried out. The post-mortem examination was carried out by Dr. Rafiu Dadi of the Department of Pathology, Ahmadu Bello University. The examinations conducted at Gwagwalada Specialist Hospital, on the 2/2/1996, in the presence of four other doctors and the police, Dr. Rafiu Dadi, gave evidence at the trial and his Post-Mortem Report was admitted in evidence. In his evidence Dr. Rafiu Dadi stated. “I took part of the liver, kidney and cervix part of the body for examination, (but) it is routine to do so. Exhibit I (The Post Mortem Report), does not include the examination carried out. But Sack is infected and infection, is an injury. There was water in the sack. I did not see any puncture with my eyes. There was a baby inside the womb. x x x x”. Earlier on he said “cause of death is blood loss, due to criminal abortion.” But according to doctors of Wuse General Hospital, the cause of death was due to Cardiac failure and that there was no evidence of any attempted abortion.

In his judgment, the learned trial Chief Judge faced with the conflicting expert evidence said “I accept Exhibit 6, as a more convenient and relevant cause of death, it being the case notes of Wuse General Hospital, where deceased has been on admission for eighteen days before she died. x x x x Post-mortem examination (Exhibit 1 and PW 1) that disregarded the notes, when they exist x x x x. I reject what Exhibit 1 says is the cause of death, as evidence of experts DW1, DW3, DW4, DW5 and DW7 sum up to correct medical situation. I accept their testimonies and reject that of PW 1. Prosecution has failed to prove any ingredient of any of the three charges as required of it by S.137 Evidence Act as to burden of proof. x x x x”.

I shall now discuss the issues as argued by the learned Counsel together. That is –

Whether cause of death can be determined by tendering case notes of Wuse General Hospital and whether the trial Judge failed to give reason for rejecting Exhibit I?

It is submitted that cause of death can be proved by the evidence of witnesses, who saw the very act that caused death or by medical evidence of an expert who examined the dead body and proffer opinion as to the cause of death. Emwenya v. A.-G. of Bendel State (1993) 6 NWLR (Pt. 297)29;(1993) 6 SCNJ 166 at 170. But an expert under S. 57 of the Evidence Act must be specially skilled in the field. See Okoagwu Azu v. The State (1993) 6 (NWLR) (Pt. 299) 303 (1993) 7 SCNJ 151 at 157, Ajani v. Comptroller of Customs (1952) 14 WACA 36. PW 1 is a pathologist and his opinion after examining the body that the cause of death “was loss of blood due to criminal abortion” ought to be accepted.
By virtue of S. 41(1)(a) of the Evidence Act, Exhibit I, as a Certificate from a pathologist, is sufficient evidence of the fact stated therein. See Solomon Ehot v. The State (1993) 4 NWLR (Pt. 290) 644; (1993) 5 SCNJ P. 65 at 67.

It is submitted further, that there is no other certificate contradicting Exhibit I, and the evidence of DW1, DW2, DW3, DW4, DW5 and DW7, who are not pathologists, cannot override Exhibit I. It is urged on this Court, to accept Exhibit I as the authentic cause of death.

It is further submitted, that the learned trial Chief Judge was in error to have rejected Exhibit I, the Post-mortem Report without giving reasons. Exhibit I, is the opinion of an expert and by virtue of S. 57 of the Evidence Act is acceptable in evidence. There is no doubt that PW1 is an expert and his testimony is at least, corroborated by DW6, who testified that when the deceased went for cough investigation, the result was negative, and that he found traces of blood in her private part. It is again submitted that evidence of DW1, DW5 and DW7 are contradictory and irreconcilable and the trial court was in error to have relied upon their evidence. The only evidence showing cause of death was Exhibit I, and the learned trial Judge was wrong to have rejected it.

For the 1st respondent, it is submitted that it was the appellant that tendered both Exhibits 1 and 6 and the trial Chief Judge appraised the evidence before him, before he accepted Exhibit 6 as the cause of death and rejected Exhibit 1. Learned Counsel referred to Jonas Ahmed v. The State (1999) 7 NWLR (Pt.613) at 641 at 645. Effia v. The State (1999) 8 NWLR (Pt.613) 1 at 3, Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252. Exhibit 6 tendered by the Prosecution is the Medical Report on the cause of death from Wuse General Hospital, where the deceased was on admission, receiving treatment for eighteen days before she died. The learned trial Chief Judge was right in accepting the Exhibit 6 and the reasons he gave for rejecting Exhibit 1 and the evidence of PW1 were justified.