Valentine Adie V. The State (1980)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C. 

The appellant was convicted at the High Court, Ogoja of the murder of Cyril Bishung and was sentenced to death. He appealed to the Federal Court of Appeal against conviction and the appeal was dismissed. He has now appealed to this Court.

The facts before the trial court, which were not in dispute, may be summarized as follows. On 16th December, 1975 both the appellant and the deceased took part in a football match after which there was hot argument between them. The appellant returned to his room at Front Line Hotel, Obudu. Not long afterwards the deceased went to the hotel and met the appellant in the room. A fight ensued between them in the room. The fight, according to the appellant, lasted about ten minutes. The time was about 7 p.m. P.W.2, James Akpagu was an eye-witness to the fight. He said in evidence that he had gone to the “generator room” of the hotel to switch on the hotel electric plant when he heard some noise coming from the appellant’s room. He went to the room and found the deceased and appellant fighting. He attempted separating the fight but in vain. One Godwin Uka came to the room and with his assistance the fight was stopped and the deceased was pushed out of the room. The appellant then got hold of a stick to chase the deceased. P.W.2 tried to stop the appellant, but the appellant shouted at him saying “let me alone to pursue him”. The appellant then went after the deceased P.W.2 came out of the Front Line Hotel but could not see the appellant. He, on information received, ran to Port Harcourt Street where he found the deceased lying on the ground. The deceased called on him for help and asked the witness to get his (deceased’s) father to the scene. Meanwhile one Justina Azikpu, P.W.5, who had seen the deceased on the ground requested Timothy Agida, P.W4, to take the deceased to the hospital. P.W.4 picked the deceased on his motor cycle and took him to the police station instead. The police then took the deceased to the Sacred Heart Hospital, Obudu, where the latter was admitted by a doctor for observation.

The doctor testified as P. W.1 and said:

“On 16/12/75 I admitted at about 8.30 p.m. one Cyril Bishung into hospital. Cyril had a small laceration on the bridge of the nose, and another laceration on the right eyebrow. I observed that the right eyelid was grossly swollen. His general condition was good at the time of admission. He was admitted for observation. On 17/12/75 his general condition was satisfactory. On 18/12/75 he had transcient episodes of restlessness and was semi-comatose at times. At 9:40 p.m. of 18/12/75 he died. I next performed a post-mortem examination on 19/12/75 at 8 a.m. I found upon dissection of the skull linear slightly depressed fracture of the frontal bone, just above the nose and another depressed fracture on the right eye brow. There was communited fracture of the right orbital plate, with displacement of splinter fragment, also observed extradural haemorrhage of the frontal orbital bone. In my opinion cause of death was the above-stated injuries on the head.”

In his defence, the appellant testified and said that when the deceased tried to run out of his (appellant’s) room in the Front Line Hotel, he (deceased) knocked his face against the frame of the door. This evidence was earlier mentioned in the appellant’s statement to police made under caution, which was put in evidence by the prosecution as Exhibit 1 and was subsequently adopted by the appellant in the course of his evidence-in-chief. The relevant portion of Exhibit 1 reads:

“During the struggle, when he got up, and was trying to run out of the house he hit his face on the frame of my door and sustained injury.”

The only point taken before us by learned counsel for the appellant was that in view of the inconsistency in the evidence of the doctor that performed the autopsy (P. W.1) there was no sufficient circumstantial evidence which could be said to have irresistibly led to the inference by the learned trial judge that it was the appellant that caused the death of the deceased. In support of this contention learned counsel for the appellant referred us to the evidence of the doctor given under cross-examination, where she said:

“All the head injuries are due to heavy direct force; these ones are consistent with injuries caused if a person ran against a heavy object”

and also the doctor’s written report which was tendered for identification by her and later put in evidence by PC Noel Ikpo, P.W.8, as Exhibit 3. In the report the doctor expressed the following opinion:

“I certify the cause of death in my opinion to be due to above head injury due to a heavy blow”.

In his judgment the learned trial judge found as follows:

“The 1st accused (now appellant) has not also disputed the fact that the deceased had an injury on his head, but explains that the injury was caused when the deceased hit his face on the wooden frame of his door. I do not accept this explanation. The doctor said there were two lacerations on the deceased’s face, one on the bridge of the nose and the other on the brow of the right eye. Under cross-examination she said the two wounds were due to heavy direct force; in Exhibit 3, her report on the autopsy, she certified that the cause of death was the head injury, (meaning I take it, the two lacerations) due, as she put it, ‘to a heavy blow.’ No accidentally self-inflicted injury could, in the circumstances in which the 1st accused said the fight took place, result in so grave an injury as those in issue in this case. . . I therefore find as a fact that it was the 1st accused who inflicted the injury or injuries on the nose and right eyebrow of the deceased, which injuries occasioned the deceased’s death on the 18th of December, 1975.”

The Federal Court of Appeal which considered the issue of the sufficiency of the circumstantial evidence observed