The State Vs Godfrey Ajie-2000

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

On 4th May, 2000, I summarily dismissed this appeal and reserved the reasons for my decision therefore to today. We did not feel obliged to call on the learned counsel for the respondent to reply.

I herein proffer my reasons briefly as follows –

At the conclusion of the prosecution’s case before the trial High Court against the respondent for murder punishable under section 319(1) of the Criminal Code, that court (per Olukole, J.) sitting at Omoku returned a verdict of guilty against the respondent and accordingly sentenced him to death by hanging on 18th October, 1991. The Court of Appeal, holden at Port-Harcourt (Coram: Katsina-Alu, Uwaifo, JCA as they were and Nsofor, JCA) to which the appellant’s appeal lay, after a dispassionate appraisal of the case reversed the trial court’s decision by holding, inter alia, as follows “it will be seen plainly that the cause of death is consistent with the version of the appellant. His case was that he was held by the deceased and Onyebuchi Okoro who was armed with a stick (sic) took aim at his head. He dodged and the deceased was hit on the left side of his head.

The deceased slumped and was taken to hospital. The medical evidence is that the deceased suffered a fractured skull. He did not suffer a broken neck which would have been consistent with the evidence called by the prosecution.

In conclusion, the failure of the learned trial judge to consider and examine the defence of the appellant led to a miscarriage of justice. Secondly, the prosecution failed to establish that it was the act of the appellant that caused the death of the deceased. It was unsafe to convict the appellant on the evidence available. The conviction cannot stand.” (Italics above is mine for emphasis).

Not satisfied with the decision of the court below, the prosecution have most unusually, appealed to this court on five grounds of appeal against the accused/respondent’s acquittal. The appellant has submitted four issues for our determination, while the respondent for his part, even though equally proffering four issues, has ultimately condensed them into two as arising for consideration. I am of the view that the two respondent’s issues are enough to dispose of the appeal. The two issues ask:-

“a. Was the court below right in making use of the contents of Exhibit “E” in arriving at the decision it handed down in the appeal before it (Ground 4 of the Ground of Appeal).

b. If Exhibit ‘E’ was properly admitted, in evidence was the court below justified in their decision that the trial court did not arrive at a fair decision on the case before it as presented by the prosecution and the defence (Grounds 1,2,3 and 5).”

Issue No. ‘A’

I will first of all consider Issue No. A. which questions whether the court below was right to use Exhibit ‘E’ in arriving at its decision. In answer thereto, it is pertinent to stress that Exhibit ‘E’ is the medical report obtained by the police in the course of their investigation into the death of the deceased, Barrister Okpara (Barrister was his first name and does not indicate his profession). One Dr. Chinwa of the University of Port- Harcourt Teaching Hospital (UPTH), a medical doctor, performed a post-mortem examination on the body of the deceased. The identification of the deceased’s body was made by his brother called Christian Okpara, who testified as PW. 5 through whom the prosecution sought to tender this report but was objected to by the defence. The learned trial judge gave a considered ruling and admitted the report as Exhibit ‘E” through the 6th P.W. to whom Dr. Chinwa had handed it before he travelled overseas. The learned judge’s ruling was further explained in his judgment by stating that what the 6th P.W. did was to comply with section 42(1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria 1990. A medical officer in the service of a state for purposes of undertaking a post-mortem examination is a pathologist and his report is a certificate as envisaged in section 42(1) (a) of the Evidence Act (ibid). The certificate when tendered and admitted in evidence is regarded as sufficient evidence of the facts stated therein.

The learned trial Judge’s ruling, as later explained in his judgment, cannot in my view, be faulted. The situation is very similar to what happened in the case of endered where the doctor who authored it was out of the country. As in the analogous case of Ehot v. The State (1993) 4 NWLR (Pt. 290) 644 at page 657G to page 658B wherein it was held as perfectly permissible for such a report to be tupra), the defence in the instant case never requested for Dr. Chinwa to present himself for cross-examination. The trial court was therefore bound to accept Dr. Chinwa’s certificate as sufficient evidence of the facts therein stated. Afortiori, the court below was justified in confirming that ruling. For come to think of it, the issue in the court below was whether Exhibit ‘E’ and the evidence of PW4, Dr. M. Gogo Abiti, of University of Port-Harcourt Teaching Hospital, Port-Harcourt are legally admissible ..

For the purpose of this judgment nothing further will be said about the evidence of D.W. 4 as there has been no complaint about it. Our query therefore relates only to the admissibility of Exhibit ‘E’ and whether the court below came to any decision on it. I am satisfied that the court did satisfy itself that Exhibit ‘E’ was admissible before making use of it in arriving at its decision notwithstanding the fact that it was not stated categorically that its’ admissibility was being decided upon. In the course of the leading judgment (Per Katsina Alu, JCA as he then was) the court below stated, inter alia thus:

“Exhibit ‘E’ is a medical report. It was issued by Dr. Chinwa who performed the post-mortem examination on the body of the deceased. Exhibit ‘E’ was received in evidence through P.W. 6 Inspector Bamidele Araba. Dr. Chinwa was out of the country at the time of the proceedings …”