Necessity of Identification of Corpse for Post Mortem Examination

“As to identification of the corpse, which he made so much fuss over, the decision of this Court in Enewoh v State (supra), seals that door. This Court made it very clear in that case, that where the totality of the evidence adduced showed unmistakably, that the body on which the doctor performed a post mortem examination was that of the deceased, a separate witness, though desirable, is not a necessity”

In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 13th Day of April, 2017
Before Their Lordships
Ibrahim Tanko Muhammad
Mary Ukaego Peter-Odili
Kumai Bayang Aka’ahs
Amina Adamu Augie
Sidi Dauda Bage
Justices, Supreme Court
SC.287/2012
Between
Adaudu Shaibui……. Appellant
And The State……..Respondent
Lead Judgement delivered by Hon. Amina Adamu Augie, JSC

FACTS

The Appellant was charged at the High Court of Kogi State, Obangede, with causing the death of a certain Ajari Mala Sule (the deceased) by stabbing him with a spear on the chest, and also vol- untarily causing hurt to “Awawu Mala” and “Ibrahim Pemida” by stabbing them with a spear on the left arm and mouth respectively. The statement of the Accused person to the Police, was tendered as Exhibit 3. In the statement, he stated that he came home from School, to meet the deceased and his brother beating his mother, and that it was when they brought out charms and guns, that he entered his room and carried a sharp spear which he used in hunting to defend himself, and it was after the deceased’s brother shot at him and the bullet missed, that he used the sharp spear on the deceased’s chest.

At trial, he gave a different account to the effect that when he came home from School, the deceased and his friends came to his house to abuse him, and it was while he was struggling to wrest the spear from the deceased during the fight that ensued, that the spear pierced him in the chest. The trial Court found him guilty of the offence of culpable homicide punishable with death, convicted him and sentenced him to death accordingly.

On appeal to the Court of Appeal, the Appellant rather than argue that the trial Judge erred by not upholding his plea of self-defence, argued that the trial Judge should have found that his evidence as DW1 was inconsistent with Exhibit 3. In his argu- ment, he referred to the Police Post Mortem Form, which stated that the alleged cause of death as “lynched to death”, contrary to what the Medical report stated as the cause of death, that is, injuries to the chest. He therefore, argued that there was no certainty as to whether it was the lynching or the alleged injuries on the deceased’s chest that caused his death.

He submitted that the benefit of doubt should be resolved in his favour. The Court of Appeal dismissed his appeal and affirmed the judgement of the trial Court. Dissatisfied, he appealed to the Supreme Court.

Issue for Determination

The Supreme Court adopted a sole issue for its determination of the appeal thus: “Whether the lower Court was right when it upheld the conviction of the Appellant”

Arguments

Counsel for the Appellant submitted that the standard of proof for the offence charged, is proof beyond reasonable doubt as prescribed by Section 139 of the Evidence Act, 2011. He submitted that there was non-compliance with the provisions of Section 249(3) of the Criminal Procedure Code with regard to the matter of a written report by a Medical Officer.

He relied on EDOHO v THE STATE (2010) 14 NWLR (PT. 1214) 651 at 678. He also argued that the failure of the prosecution to inform the Appellant of his right to disagree with the report given the apparent unsatisfactory state, was fatal to the case of the prosecution. Further, the Appellant contended that the requirements for a statement to be taken as a dying declaration, had not been met and that the Court made use of the dying declaration wrongly. He relied on AKINFE v THE STATE (1988) 3 NWLR (PT. 88) 799 AT 746; AKINOLA v V.C UNIVERSITY OF ILORIN (2004) 11 NWLR (PT. 885) 616.

Finally, he submitted that the concurrent findings of the two Courts below are perverse and urged the Supreme Court to interfere with the findings. Counsel for the Respondent submitted that, the prosecution proved the case beyond all reasonable doubt. He contended that it is trite that once a person dies immediately from wounds sustained as in this case, the logical conclusion is that the deceased died from the injury sustained from such spear stab and that the medical report may not be necessary.

He relied on EMWENYA v A-G BENDEL STATE (1993) 6 NWLR (PT. 297) 29 AT 39. He stated that Exhibits 1 and 2 will reveal that the corpse was identified; therefore, the provisions of Section 249(3)(a) of the Criminal Procedure Code was complied with, and that there was no miscarriage of justice. He further contended that the extra-judicial confession of the Appellant, was enough to ground a conviction as he admitted to committing the crime.

He relied on BASSEY v THE STATE (2012) 12 NWLR (PT. 1314) 209 at 227. Counsel also pointed out that the Appellant raised fresh issues on appeal, and that without the leave of Court first sought and obtained, he cannot do that. Counsel relied on DIRECTOR SSS v AGBAKOBA (1999) 3 NWLR (PT. 595) 315 at 365; ADEBAYO v BABALOLA (1995) 7 NWLR (PT. 408) 383 AT 410. He stated that the Appellant set up a case of self-defence at the trial Court; at the Court of Appeal, he raised the issue of contradic- tion and at the Supreme Court, he brought up the issue of dying declaration. Finally, he urged the Court to uphold the concurrent findings of the two Courts.

Court’s Judgement and Rationale Deciding the sole issue for determination, the Supreme Court held that, where medical evidence is essential as to the cause of death, it is invari- ably also essential that the person who allegedly identified the corpse of the deceased to the Doc- tor, is called to testify as to the identification, unless the identity of the deceased can be inferred from the circumstances of the case. The Court referred to the authority of ENEWOH v STATE (1990) 4 NWLR (PT. 145) 469. In the present case, Exhibit 1 has the details, indicating that it was the body of the deceased that was examined by the Medical Officer who signed Exhibit 2. The fact that the name of the person who was to identify the deceased was not on the form, is not sufficient to find to the contrary in the face of all evidence available. The apex Court held further that, where the totality of the evidence adduced showed unmistakably that the body on which the Doctor performed a post mortem was that of the deceased, a separate witness, though desirable, is not a necessity.

The Appellant’s contention that Exhibit 1 and 2 had discrepancies and were incon- sistent with the testimony of PW4 and PW5, was discarded by the Court. Their Lordships held that, contradictions that will be fatal, must be substantial and that minor contradictions that do not affect the credibility of witnesses may not be fatal. The contradiction must relate to the substance of the matter. The Supreme Court found that PW4 and PW5 painted a vivid picture of the incident, and that there is no question that the Appellant stabbed the deceased, and that there was no break in the sequence of events from when the deceased was stabbed until the corpse landed at the Mortuary. The Court relied on BEN v THE STATE (2006) 16 NWLR (PT. 1006) 582 in holding that, medical evidence is not essential in establishing the issue, where the deceased was attacked with a lethal weapon and died instantly.

On the issue of dying declaration, the Supreme Court found that, the issue was freshly raised by the Appellant at the Supreme Court. The Court went on to hold that an appellate court will not generally allow a fresh point to be taken before it, if such a point was not raised and pronounced upon by the Court below, unless of course, the question involves substantial points of law and no further evidence needs be adduced to determine the matter, and such a course of action is necessary to prevent an obvious miscarriage of justice.

The Court held that, since the issue of dying declaration was not raised at the two lower courts, the Appellant needed leave of the Supreme Court before same can be raised at the Supreme Court, and that since the Appellant did not take that step, the issue will be discountenanced. Finally, the Supreme Court held that, there is more than enough evidence established to support the concurrent findings of the trial Court and the Court of Appeal; therefore, the Supreme Court is not in a position to inter- vene. Appeal Dismissed; decision of the trial Court upheld.

Representation:

Miss S.I. Dokubo for the Appellant P.H. Ogbele Esq. with Boniface Bassey Esq., Ok- wudili Abanum Esq., A.A. Malik Esq., N.I. Nta Esq. and Ibrahim Alhassan Esq. for the Respondent.

Reported by Optimum Law Publishers Lim- ited (Publishers of the Nigerian Monthly Law Reports (NMLR))