Ukwa Egbe Enewoh V. The State (1990)

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OLATAWURA, J.S.C. 

The only issue raised in this appeal is whether there was proper identification of the body of the deceased to the doctor who performed the post mortem examination.

The appellant was charged at the High Court of Anambra State. Abakaliki Judicial Division, of the murder of his brother one Nworie Ukwuru Enewoh. The particulars were that he murdered him on or about 30th July, 1981 at Anyimechuku Alike Ikwo contrary to section 319(1) of the Criminal Code. Cap. 30. Laws of the former Eastern Nigeria applicable in Anambra State. The prosecution called 5 (five) witnesses. The appellant gave unsworn evidence from the dock and denied the charge.

The facts that led to the conviction are not in dispute. The deceased was the brother of the appellant. A dispute arose out of the use of a farmland. The appellant employed a woman to work for him on the farmland. The deceased was getting to the farm asked the woman to stop working thereon. The appellant did not take kindly to this. He then went home and collected a rod or iron oar which was later admitted in evidence as Exhibit C. He hit the deceased several times with the rod. The deceased shouted “Ukwa Egbe is killing me.” It was this shout that attracted the attention of the wife of the deceased (P.W.1) to the scene. She ran there and saw the accused heating the deceased with the rod. The appellant’s son (P. W.4) was there, but despite his plea with his father, the appellant continued hitting him with the rod. He hit him on the leg, stomach and hand. He was later carried to Abakaliki General Hospital where he died the following day in the hospital.

Both counsel addressed the court. After a meticulous review of the evidence of both the prosecution and the defence, and a consideration of the submission made. Offiah. J., found the appellant guilty as charged and sentenced him to death. Not satisfied with the judgment, the appellant appealed to Enugu Division of the Court of Appeal. The appeal was also dismissed and the conviction and sentence of death were affirmed. The appellant has now appealed to this court. “The only ground of appeal argued and which is covered by the only issue raised for determination read:-

“The learned Justices of the Court of Appeal erred in law in dismissing the appellant’s appeal and affirming the conviction and sentence of murder of the learned trial Judge, when the prosecution failed to lead any evidence to identify the body examined by the 3rd P.W., Dr. Chukwudi Egbuonu as that of Nworie Ukwuru Enewoh alleged killed by the appellant.

Particulars of Error

(a) The prosecution at the trial led no evidence to establish that Nworie Ukwuru Enewoh, alleged killed by the appellant, was known to the 3rd P.W. Dr. Eghuonu, during his lifetime.

(b) The prosecution at the trial called no evidence of identification of the body of the said Nworie Ukwuru Enewoh (deceased) to the said 3rd P.W. Dr. Egbuonu, who performed the post-mortem examination; Ote Enewoh who identified the said body to the Doctor having died before the trial.

(c) To warrant a conviction in a case of murder, the prosecution must call evidence in support of the identification of the body of the deceased to the Doctor who performed the post-mortem examination as that of the person alleged killed by the accused;

(d) The evidence of identification is vital and failure to call same is fatal to case of the prosecution:-

(i) The State v. Nicholas Uzuagwu & Ors. (1972) 2 . E.C.S.L.R. Part II Page 429;

(ii) Osarodion Okoro v. The State (1988) 5 N.W.L.R. (Part 94) page 255;

(iii) R. v. Laoye 6 W.A.C.A. 6.”