Patrick Oforlete v. The State

I have been privileged to read before now, the lead judgment of my learned brother Kalgo JSC. and I agree with his reasoning and conclusion for allowing the appeal.
My learned brother Kalgo JSC has adequately stated the facts of this case which therefore need no further recapitulation by me in this concurring judgment. I only want to add this by way of emphasis –
Where a person is accused of committing a criminal offence, the onus is on the prosecution to prove the charge against him beyond reasonable doubt. See section 137(1) of the Evidence Act and Joshua Alonge v. I.G.P. (1959) IV FSC 203 (1959) SCNLR 516; R. v. Oledima & 6 ors 6 WACA 202. Was there such evidence in this case satisfying the onus that the appellant was guilty of the lesser offence for which he was convicted by the trial court and the lower court? The answer will certainly be in the negative having regard to the conflicting evidence on the cause of death of the deceased.
The only eye witness to the incident was P.W.1, wife of the deceased. The gist of her uncontroverted evidence was that, the senior brother of the appellant one Sylvester Oforlete abused and slapped her in the presence of her late husband. This resulted in a fight between the deceased and Sylvester Oforlete in the course of which the appellant picked a kitchen bench with which he hit the former on the head. The head was swollen. Three months later the deceased was taken to Umuna General Hospital where he was admitted for about two weeks. On the advice of the doctor that treated him, the deceased was taken to pyschiatric Hospital where he died.
P.W.2 was the doctor that treated the deceased at Umuna General Hospital. He testified thus-
“I treated a patient by name Ohaya Odiolemgbe on 21/11/88. Cites history of having been hit about three months previously. I examined him I found blood clot on the head infected. I read Xray of the skull and there was no visible injury of the bone. I opened the accumulation of blood and obtained some pus mixed with blood. The patient was for admission but he was not willing to stay on admission and agreed to be coming from home for dressing.
On 27/11/88 the patient was brought back in a semi conscious state and he was admitted for having serious (sic) in the blood for the infected head injury. There was improvement for three days. On 1/12/88 the patient was no longer able to speak or eat and mildly aggressive. He was recommended to psychiatric Centre at Aba on 1/12/88, On 5/12/88, his relations were able to send him to Aba.”

P.7

Under cross-examination he further stated:-
“The deceased was not regular as out patient. It is possible that other factors could have intervened to make the condition of the patient worse. I did not perform the post mortem examination.”
P.W.5 was the doctor that performed the autopsy on the deceased’s body. He stated in his evidence as follows:-
“It was the corpse of a male person average height and fair complexion. The deceased appeared to be ill for some time. There was a fresh looking swelling on the left side of parietal area of the skull. Close tending of the body revealed a soft swelling with contents mostly of blood and some purulent material. The underlying bone of the skull under the swelling had some ragged appearance indication of a spontaneously closed skull fracture. There was general dehydration and pollar. In my view the cause of death is traumatic head injury leading to infected scalp haemotone and optiemia with anamia and dehydration. The head injury could be when that part of the head came into contact with any hard object.”
From the two pieces of evidence above one could not with definitive certainty, say which of the two injuries sustained by the deceased on the head caused his death. Was it the earlier injury caused by the act of the appellant, or the “fresh looking swelling on the left side of the parietal area of the skull” as dissected by P.W.5? There was no conclusive evidence that it was the first injury sustained by the deceased resulting from the act of the appellant that caused the death. See Sunday Archibong v. The State (1972) All NLR 365; or accelerated it. See Effanga v. The State (1969) 1 All NLR 339. 
However the uncontroverted evidence of P.W.1 proved an unlawful act by the appellant to wit: hitting the deceased on the head with a kitchen bench, occasioning him bodily harm, contrary to Section 355 of the Criminal Code of the defunct Eastern Nigeria applicable in Imo State. And by virtue of section 179 of the Criminal Procedure Law applicable in Imo State, I substitute a conviction under section 355 of the Criminal Code and sentence the appellant to one year imprisonment with hard labour.
It is for this and the fuller reasons of my learned brother Kalgo, JSC., contained in the lead judgment that I also hereby allow the appeal and set aside the conviction and sentence for manslaughter.

I have had a preview of the judgment of my learned brother Kalgo, JSc. just delivered. I agree with him that, in view of the discrepancy in the evidence of P.W.2 and P.W.5, the two medical doctors that had at one time or another treated the deceased or performed post-mortem examination on his corpse, the two courts below were clearly in error to have convicted the appellant of manslaughter. It was not proved by the prosecution, beyond reasonable doubt, that it was the act of the appellant that caused the death of the deceased.

P.8

P.W.2 Dr. Shinmobi Onyeagoro treated the deceased at the General Hospital Umuna Orlu. At the trial of the case he testified thus:
“It treated a patient by name Ohaya Odiolemgbe on 21/11/88. Cites history of having been hit about three months previously. I examined him I found blood clot on the head infected. I read X-ray of the skull and there was no visible injury of the bone. I opened the accumulation of blood and obtained some pus mixed with blood …
On 27/11/88 the patient was brought back in a semi conscious state and he was admitted for having serious (sic) in the blood for the infected head injury. There was improvement for three days. On 1/12/88 the patient was no longer able to speak or eat and mildly aggressive. He was recommended to psychiatric Centre at Aba on 1/12/88. On 5/12/88, his relations were able to send him to Aba.” (Italics are mine)
Cross-examined, the witness deposed” … it is possible that other factors could have intervened to make the condition of the patient worse.” P.W.5 Dr. Uchenna Gordon Iheme of the General Hospital Aba performed the autopsy on the body of the deceased on 7/12/88. In his evidence at the trial, he stated thus:
‘The deceased appeared to be ill for some time. There was a fresh looking swelling on the left side of parietal area of the skull. Close tending of the body revealed a soft swelling with contents mostly of blood and some purulent material. The underlying bone of the skull under the swelling had some ragged appearance indication of a spontaneously closed skull fracture. There was general dehydration and pollar. In my view the cause of death is traumatic head injury leading to infected scalp haemotone and optiemia with anamia and dehydration. The head injury could be when that part of the head came into contact with any hard object. The date of death was about 7/12/88.” (Italics are mine)
Cross-examined, he testified thus:
“X-ray is to see whether there is an injury to the bone. X-ray could confirm a skull fracture.”

P.9

The evidence of the two doctors apparently raised some confusion. P.W.2 spoke of the treatment he gave to the deceased when he said that he opened up the accumulation of blood in the swelling and obtained some pus mixed with blood. He also testified that there was no visible injury of the skull bone from the X-ray film. P.W.5 on the other hand, found on post-mortem examination that the underlying bone of the skull under the swelling he saw was of some ragged appearance indicative of a skull fracture. The swelling he saw was a fresh looking one. The question arises – what caused the fresh looking fracture that P.W.5 saw on 7/12/88? How was that swelling caused? and who caused it? These questions remained unanswered. Surely the injury P.W.2 saw on 21/11/88 and which he opened up could not have been the same fresh looking swelling that P.W.5 saw on 7/12/88. P.W.5 testified that in his opinion the cause of death of the deceased was “traumatic head injury leading to infected scalp haemotone. All these tend to raise doubt in the mind of any reasonable man as to whether it was the swelling occasioned by the act of the accused in hitting the deceased with a “kitchen bench”
on the head some three months earlier, as testified to by P.W.1 the wife of the deceased and P.W.2. The doubt arising from the confused state of the evidence of the two doctors must be resolved in favour of the appellant.
To sustain a conviction for the offence of manslaughter, it must be established beyond reasonable doubt, that it was the act of the accused that caused the death of the deceased. That burden has not been discharged by the prosecution in this case. The learned trial Judge, though rightly acquitted the appellant of the offence of murder, was in error to have convicted him of manslaughter. The appellant should have been acquitted of both offences. The Court of Appeal was equally in error to have affirmed the conviction for manslaughter. I too, therefore, allow this appeal, set aside the conviction of the appellant for manslaughter and acquit him of that offence.
There was evidence, however, that the appellant assaulted the deceased and thereby occasioned him (the deceased) harm. That is an offence under section 355 of the Criminal Code of Eastern Nigeria. By virtue of section 179 of the Criminal Procedure Law of Eastern Nigeria applicable in this case, I find the appellant guilty of an offence for assault occasioning harm contrary to section 355 of the Criminal Code and convict him accordingly. I subscribe to the sentence of one year imprisonment with hard labour pronounced on him by my learned brother Kalgo, JSC. The sentence is to take effect from the date of conviction in the trial High Court.

P.10

 This short appeal turns on the elementary but fundamental principle that in order to secure a conviction in any criminal trial the burden on the prosecution to establish the charge against the accused beyond reasonable doubt has not been mitigated. The criminality must be established to the hilt.
The appellant was prosecuted on a charge of murder before Onunuju, J. The appellant pleaded not guilty but after due trial, of which the wife of the deceased. P.W.1, was the only eye-witness that testified for the prosecution, the learned trial Judge reached the conclusion that consequent to the fight between the deceased and Sylvester Oforlete, the senior brother of the appellant, the latter reached a kitchen stool or bench with which he hit the deceased on the head. It became swollen; three months later the deceased was taken to the Umuna General Hospital for treatment.
He was hospitalised for about two weeks and thereafter, on the advice of the doctor treating him, he was transferred to the Pyschiatric Hospital, Aba where he died.
Besides the unchallenged evidence of the deceased’s wife, two medical doctors also testified. The first, P.W.2, was the doctor that treated the deceased at the hospital before his death. Part of his testimony ran as follows:
“I examined him and I found blood cloth (sic) on the head infected. I read X-ray of the skull and there was no visible injury of the bone. I opened the accumulation of blood and obtained some pus mixed with blood. The patient was for admission but he was not willing to stay on admission and agreed to be coming from home, for dressing.
On 27/11/88 the patient was brought back in semi conscious state and he was admitted for having serious (sic) in the blood for the infected head injury. There was improvement for three days. On 1/12/88 the patient was no longer able to speak or eat and mildly aggressive (sic). He was recommended to psychiatric centre at Aba on 1/12/88. On 5/12/88, his relations were able to send him to Aba.”
He further stated under cross-examination that the deceased was not regular as an out-patient and it was possible that other factors could have intervened to make the condition of the patient worse.
The second doctor (P.W.5) performed the post-mortem examination on the deceased. He found a fresh looking swelling on the left side of the parietal area of the skull. In his view, “the cause of death was traumatic head injury leading to infected scalp haemotone and optiemia with anamia and dehydration. The head injury could be when that part of the head came into contract with any hard object.”

P.11

The learned trial Judge found the evidence of P.W.1 unshaken and accepted it as well as the evidence of the two medical doctors, P.W.2 and P.W.5 and these pieces of evidence confirmed that the deceased’ s death was caused by injury on the head inflicted by the appellant. Accordingly, he rejected the appellant’s denial of the allegation that he hit the deceased with the stool or bench whereby he sustained the injury on that fateful day. He was however not able to find the appellant guilty of murder but guilty of manslaughter.
Appellant’s appeal to the Court of Appeal was dismissed as that court held that the trial court properly evaluated the evidence tendered and reached a right conclusion. Of course, that Court of Appeal was right with regard to the question of evaluation of evidence by the trial court. It would be recalled that the learned trial Judge found that the evidence of P.W.1, the only eye witness, was unchallenged under cross-examination. Where that is the case the court is not only entitled to act on or accept such evidence but is in fact bound to do so provided that such evidence by its very nature is not incredible. Thus, where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See Akinwunmi v. Idowu (1980) 3-4 SC 108, Bello v. Eweka (1981) 1SC 101, M. T.A. & Sons v. F.H.A. (1991) 8NWLR (Pt.209) 295, p. 313, Omoregbe v. Lawani (1980) 3-4 SC 108, Azeez v. The State (1986) 2 NWLR (Pt.23) 541 and Broadline Enterprises Ltd. v. Monterey Maritime Corporation & anor (1995) 9 NWLR (Pt.417) 1,27. After all, the noble art of cross-examination constitutes a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire.
Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross-examine a witness after his evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.
I must confess that initially I found the unchallenged evidence of P.W.1 very attractive and would have gone along with it to accept the verdict of the learned trial Judge but for the rather conflicting or, at any rate, confused evidence tendered by P.W.2 and P.W.5, two medical experts. I would imagine that the evidence of P.W.1 supported separately either by the evidence of P.W.2 or that of P.W.5 would have been reasonably convincing to return a verdict of manslaughter as did the two lower courts.

P.12

However, the communal effect on close evaluation of the testimonies of P.W.2 and P.W.5, as I had said earlier evidence of two medical experts with the evidence of P.W.1 makes the quest for cause of death unfortunately very unsatisfactory. It is the law that the prosecution are not irrevocably committed to ask for conviction in the face of unexplained aspects of their case that is transparently contradictory or unsatisfactory. It is the discrepancy or the unsatisfactory nature of the evidence of the two medical experts that has left me in a quandary regarding the verdict of manslaughter returned by the learned trial Judge, as well as the confirmation of that decision by the unanimous judgment of the Court of Appeal. This is another way of saying that I have reasonable doubt as to the guilt of the appellant as regards his conviction for manslaughter. The law, as I understand it, is that such doubt must be resolved in favour of the appellant where the allegation of his offence has not been proved beyond reasonable doubt by the prosecution.
But this is not the end of the matter. As earlier noted, the unchallenged eyewitness evidence of P.W.1, which was, in my view, rightly accepted by the learned trial Judge, inter alia established the fact that the appellant hit the deceased with a stool or bench on the head thereby caused the swelling on the head. On the same matter, the Court of Appeal through the leading judgment of Ogebe, JCA. confirmed this finding of the learned trial Judge in these words:
“The interesting aspect of this case is that the appellant’s counsel in the court below did not challenged the evidence of P.W.1 under cross-examination as it related to what the appellant did to the husband (meaning the deceased)”
I have carefully perused the evidence of P.W.1 and also agree with the findings of the two lower courts that the evidence of P.W.1 was not challenged at all. This incidentally, was the question for determination postulated as appellant’s Issue No.2.
As earlier noted the medical evidence tendered through the two medical experts was confused and unsatisfactory, and therefore not safe to act on them. But I must hurry to say that a court trying a case of murder is not bound to rely on medical evidence in proof of cause of death of the deceased, a vital ingredient in all murder trials. This is so because in the absence of such medical expert evidence the court is entitled to infer the cause of death provided there is clear and ample evidence that the death of the deceased was the direct result of the unlawful act of the appellant to the exclusion of all other reasonably possible causes. See Lori v. The State (1980) 8-11 SC 81 and Rex v. Nwokocha 12 WACA 453. But this was not the case on hand.

P.13

Here, medical evidence was led through P.W.2 and P.W.5, but as earlier noted, their testimonies were unsatisfactory in relation to the cause of death. Their evidence revealed an intervening period of three months between the injury occasioned to the deceased and the time he was actually treated by P.W.2, including obtaining an X-ray of the deceased’s skull. What, perhaps, was the last straw that broke the camel’s back was the testimony of P.W.5 in relation to his autopsy examination and where he said that there was a fresh looking swelling on the left side of the deceased’s parietal area of the skull which disclosed the fracture of the skull. Clearly, the contradictory evidence of the two medical prosecution witnesses left much to be desired. And as earlier noted, it made it impossible for any fair-minded tribunal to convict for murder or even manslaughter in the face of such serious doubt raised by the prosecution’s case.
However, it has been noted that the unchallenged evidence of P.W.1 provides compelling evidence of hitting of the deceased by the appellant with a stool or bench on the head which became swollen. This constitutes the offence of assault occasioning harm under section 355 of the Criminal Code of erstwhile Eastern Nigeria applicable in Imo State. There has been no sensible defence made out on behalf of the appellant, and I dare say that none can be so made out in the face of the positive unchallenged evidence of P.W.1. Therefore, I, too, find the appellant guilty of the offence of assault occasioning harm and convict him accordingly.
In the result, I allow, the appeal and set aside the conviction and sentence of manslaughter of the two lower courts. In its place I sentence the appellant to one year imprisonment with hard labour and the sentence is to take effect from the date of his conviction in the trial court.

 I have had the privilege of reading in advance the judgment delivered by my learned brother, Kalgo, JSC. I agree with him that this appeal should be allowed. Since my initial inclination was to dismiss the appeal, it is expedient that I make comments on some aspects of the appeal.
The facts are already well and fully stated in the judgment of Kalgo, J.S.C. I need not repeat them in full but state them in a much abridged form. On an amended charge of murder the appellant was found guilty of manslaughter and convicted accordingly.

P.14

The facts which the trial Judge accepted were that sometime in August, 1988 the appellant joined in a fight between the 1st P.W.’s husband (the deceased) and the appellant’s brother. The part that he took was to pick up a kitchen bench with which he hit the deceased on the head. After two or three months the deceased was taken to the hospital and he eventually died about four months after the incident.
The medical evidence consisted of that of the doctor who saw the deceased when he was alive and brought to the hospital for treatment three months after the incident and that of the doctor who conducted a post-mortem examination of his corpse. The latter described the cause of death as “traumatic head injury leading to infected scalp haematoma” etc. He found “a fresh looking swelling on the left side of parietal area of the skull”. The former found that the deceased had “blood clot infected swolling (sic) head”. Upon X-ray he did not find any “visible injury on the bone”, whereas the latter found indication of’ a spontaneously closed skull fracture.”
The trial Judge believed the deceased’s wife (P.W.1) who was the only eye witness of the incident. He noted that: “She was not shaken in cross-examination”
and that: “Questions put to her under cross-examination had nothing to do with the alleged fight.” He concluded that “the evidence of P.W.1, P.W.2 and P.W.5 confirmed that fact that the deceased’s death was caused by injury on the head inflicted by the accused.”
Needless to say that these findings indicated a rejection of the appellant’s defence which was a denial of the allegation that he hit the deceased with the stool or bench, and of the fact that the deceased had an injury that day.
The trial Judge found the appellant not guilty of murder but guilty of manslaughter. His appeal to the Court of Appeal was dismissed. That court held (per Ogebe, JCA) that the trial Judge properly evaluated the evidence and came to a right conclusion.
On this further appeal, learned counsel on behalf of the appellant tried to raise certain issues which were not raised at the Court of Appeal touching on the regularity of the plea taken. Since leave was not obtained to raise fresh points these issues cannot now be raised. At first blush, it appeared that the rest of the appeal turned on facts.
The issue was raised by the appellant “whether it is correct as found by the two courts below, that the evidence of P.W.1 was not challenged at all.” That issue arose because the trial Judge had noted in his judgment as follows: “Note – no questions on the allegation of P.W.1 that this accused came to the scene of the fight picked up kitchen bench which he hit on the head of the deceased and there was a swelling on the deceased head as a result.”

P.15

Later, he said:
“As I observed earlier, after this evidence of P.W.1 on questions were put to her on the allegations of facts she made against the accused. She was not shaken in cross-examination. There is no suggestion to her that all she said the accused did were not true. Questions put to her under cross-examination had nothing to (do) with the alleged fight”
Ogebe, JCA. who delivered the leading judgment of the Court of Appeal said: “The interesting aspect of this case is that the appellant’s counsel in the court below did not challenge the evidence of P.W.1 under cross-examination as it related to what the appellant did to the husband. In other words, P.W.1 evidence was not controverted at all.
It is contended by learned counsel for the appellant on this appeal that it was not correct that the evidence of the P.W.1 stood unchallenged. It was submitted that apart from cross-examination, evidence before a court can be contradicted, impugned and discredited by another conveying the negative impression in the adversary’s evidence. Learned counsel pointed to the evidence of the 2nd defence witness which contradicted the 1st prosecution witness’s evidence.
The questions that arise are, first: what amounts to challenge of evidence and, second: what is the effect of failure to challenge evidence. It is implied in the submission by counsel for the respondent that failure to cross-examine a witness on an issue amounted to failure to challenge the evidence of the witness on that issue.
In Blackstone’s Criminal Practice, 1991, the effect of failure to cross-examine a witness upon a particular matter is stated to be a tacit acceptance of the truth of the witness’s evidence. The law was put thus, citing Hart (1932) 23 Cr App P.202 as authority:
“A party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict him or impeach his credit by calling other witnesses tacitly accepts the truth of the witness’s evidence-in-chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve him in that regard. The proper course is to challenge the witness while he is in the witness-box or, at any rate, to make it plain to him at that stage that his evidence is not accepted.”

P.16

A similar attitude to the effect of failure to cross-examine a witness is contained in the opinion of Iguh, JSC., in Broadline Enterprises Ltd v. Monterey Maritime Corporation & anor (1995) 9 NWLR (Pt.417) 1,27 when he said:
“I think the first point must be made for a better appreciation of their resolution that where evidence given by a party to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence before it as established.”
Isaac Omoregbe v. Daniel Lawani (1980) 3-4 SC 108; 177; Odulaja v. Haddad (1973) 11 SC 357; Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81 and Adel Boshali v. Allied Commercial Exporters Ltd 1961) 2 SC NLR 322; (1961) All NLR 917 were cited as authority. It is significant that he went on impliedly, to distinguish “unchallenged” evidence from evidence not controverted by contrary evidence when he said:
“So, too, where the defendant offered no evidence, the plaintiff’s evidence before the court under such circumstance clearly goes one way with the other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the plaintiff. The onus or proof in such a case is discharged on minimal of proof’.
However, it does appear to me that a distinction has not always been drawn in the manner in which evidence is challenged or controverted. “unchallenged” and “uncontroverted” have mostly been used as meaning the same thing. See, for instance, Egbunike v.ACB Ltd (1995) 2 NWLR (Pt.375) 34 SC.
In a strict sense “unchallenged” and uncontroverted” may not mean the same thing. To challenge is to object or except to something or to put it in dispute or render doubtful. To controvert is to dispute or deny, oppose or contest. (For both definitions see Black ‘s Law Dictionary 6th Edition). Challenging witness is more appropriate in cross-examination while controverting his evidence is more appropriate in leading contrary evidence. Notwithstanding the distinction, in most cases the consequence would be the same whether evidence is unchallenged or whether it is uncontroverted. Where evidence is challenged and rendered doubtful or without weight by cross-examination, the fact that it is not controverted by contrary evidence will not render it cogent or weighty. On the other hand, the fact that contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens any suggestion that that evidence is not true.

P.17

In every case, in my judgment, it is for the trial Judge to decide what the effect of failure to cross-examine a witness on a particular matter has on his evidence in regard to such matter having regard to the circumstances of the case. I venture to think that a trial Judge will not readily reject the evidence of a witness on a matter in respect of which he has not been cross-examined. If he accepts the evidence on the ground that the witness had not been cross-examined upon it and prefers it to a controverting evidence which he adverted to, an appellate court will not hold that he has failed to evaluate the evidence before him.
In the present case, the trial Judge was right in accepting the evidence of P.W.1 and, in doing so, in adverting to the fact that her evidence on the particular matter was unchallenged in cross-examination. The Court of Appeal was right in upholding the trial Judge’s view.
The finding that the appellant hit the deceased on the head with a kitchen stool being beyond reproach, the only question that is left is whether that act of the appellant caused the deceased’s death. My initial inclination to uphold the judgment of the two lower courts arose from the following facts;(1) The appellant hit the deceased on the head thereby causing the head to be swollen. (2) The doctor who treated the deceased three months later “found blood clot on the head infected.” He said that he “opened the accumulation of blood and obtained some pus mixed with blood”. (3) The presence of a fresh looking swelling on the left side of parietal area of the skull. (4) As described by the 5th P.W. who performed the autopsy on the deceased’s body, the presence of a “soft swelling with contents mostly of blood and some purulent material” with tile “underlying bone of the skull under the swelling” having some ragged appearance indication of a spontaneously closed skull fracture.” (5) The description of the cause of death by the 5th P. W. as “traumatic head injury leading to infected scalp heamatoma,” the head injury having possibly been caused by the affected area coming into contact with any hard object.
All these facts are in my judgment consistent with the case which prosecution presented, that the appellant hit the deceased on the head with a stool, a hard object, causing a swelling in his head. However, the causal connection of the act of the appellant and the death of the deceased still had to be established. The learned trial Judge approached the issue thus:
“The evidence of P.W.1 P.W.2 and P.W.5 confirmed the fact that the deceased’s death was caused by injury on the head inflicted by the accused. It is clear in my view that at the time the injury was inflicted the skull of the deceased was fractured though it was regarded not serious. P.W.2 saw the swelling as well as P.W.5. It is uncontradicted that the accused inflicted the injury which broke the skull of the deceased and death having (sic) resulted therefrom.

P.18

The accused is liable,
Later in his judgment he stated:
“I saw no contradiction in the evidence of the prosecution witnesses.”
In the Court of Appeal, Ogebe, J.C.A. said:
“the deceased developed a swelling which subsequently led to his hospitalisation and death 4 months later.” He relied prominently on the testimony of the medical officer who performed the post-mortem examination on the body of the deceased (P.W.5) and expressed the opinion that “the cause of death is traumatic head injury.”
On the appeal to this court by the appellant, learned counsel on his behalf argued that the medical report on which the conviction was predicated was “inconsistent to the circumstances of the case” After referring to the evidence of the doctor (P.W.2) who treated the deceased before his death and three months after the incident, and of the doctor (P.W.5) who examined the deceased’s corpse, he drew attention to the testimony of the former (P.W.2) who said: “I read X-ray of the skull and there was no visible injury of the bone”, as contrasted to that of the latter (p.W.5) who reported that he found a “spontaneously closed skull fracture” It was submitted that these pieces of evidence were irreconcilably in conflict as to whether there was a fracture of the skull of the deceased or not, and that the two courts below did not advert their minds to this aspect of the case. Issue was also made of the statement of the 5th prosecution witness who stated that “there was a fresh looking swelling on the left side of the parietal area of the skull.”
In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved, in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act,(or omission) of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.
In the present case, the cause of death was given by the evidence of the doctor who said that the deceased’s death was caused by injury on the head. I part ways with the trial Judge when he, without adverting to and considering the evidence, proceeded to hold that:

P.19

(i) “At the time the injury was inflicted the skull of the deceased was fractured though it was regarded not serious.”
(ii) It is uncontradicted that the accused inflicted the injury which broke the skull of the deceased.
(iii) That death resulted therefrom, that is to say, fractured skull.
Although there was evidence of the doctor (P.W.5) who examined, postmortem, the body of the deceased and found a “spontaneously closed skull fracture” there was no evidence that that was caused by the blow  inflicted by the appellant on the head of the deceased. There was no evidence of the approximate age of the fracture. There was no evidence to support the view expressed by the learned Judge in (i) and (ii) above. Besides, it seems evident that the trial Judge did not have an adequate grasp or understanding of the medical evidence, probably because he did not understand the medical terms used by the medical witnesses and he did not ask them to explain. Thus, although the 5th prosecution witness stated the cause of death was “traumatic head injury leading to infected scalp haematoma and spticuda (sic) with anaemia and dehydration”, the learned Judge did not ask what “heamatoma” meant. Perhaps, if he had consulted the most basic medical book, as I have done, he would have found “haematoma” described as “swelling from bleeding into the tissues”. (See Penguin Medical Encyclopedia 3rd Edition p. 214). It could also mean a collection of clotted blood. There was nothing to show that heamatoma could not be caused without a fracture. What is significant is that it was the infection of the scalp haematoma occasioned by the head injury that caused the death. The learned Judge went on a trail of his own when he held that death resulted from afractured skull, when there was no medical or any evidence to that effect.
In our criminal justice system a trial Judge is not permitted to speculate as to cause of death. Where the prosecution adduced medical evidence, or other acceptable cogent evidence of the cause of death, it is incumbent on the trial Judge to consider that evidence and then accept or reject it. Where he rejects it, he is not expected to go on an inquiry of his own in order to attribute the death to any cause other than as in evidence before him or find the accused guilty on finding a cause of death not based on facts relied on by the prosecution.
My view that the finding by the trial Judge that the cause of death was fractured skull was contrary to the evidence in the case is sufficient, in my view, to dispose of the appeal; even if I do not proceed to an enquiry whether there was a causal link between the act of the appellant and the cause of death.

P.20

I do not attribute much significance to the apparent inconsistency in the evidence of P.W.2 and that of P.W.5 in regard to whether or not the skull of the deceased was fractured. There is no evidence that as a matter of medical fact every fracture is detectable by conventional X-ray, or that a healed fracture will necessarily be detected by X-ray. Besides, P.W.2 who carried out diagnostic X-ray was probably not looking for a healed fracture.
The truth of the matter is that the whole case was poorly investigated, and poorly prosecuted. Proper investigation should have revealed some degree of continuity between the blow to the deceased’s head resulting in a swelling on the head and the eventual resort to medical treatment three months later. Proper prosecution should have ensured that adequate evidence of causal link of the cause of death and the appellant’s act was presented at the trial. The prosecutor should have ensured, but did not ensure, that medical evidence was presented in an intelligible form leaving nothing to speculation and conjecture. The gap between the incident and the first contact of the deceased, three months later, with the first medical witness (P.W.2) should have put the investigator and the prosecutor on inquiry whether the swelling occasioned by the blow inflicted on the deceased by the appellant persisted and was troublesome to him until medical help was sought.
In establishing a causal link between the act of an accused person and the relevant consequence, as a factual question, no aspect of the enquiry should be left to assumption, speculation or conjecture. Where a long period has transpired between the act and the consequence alleged, much stronger evidence is required to show an unbroken link between act and consequence than when the act and consequence are contemporaneous or proximate in matter of time.
Notwithstanding my initial inclination to dismiss this appeal, after further consideration, I find that the conclusion arrived at by the two courts below cannot be justified without attempting to re-write their judgments and, in the process, re-evaluate and re-interpret such evidence as there was. That is not a role an appellate court should embark upon, except perhaps, in the most straight-forward cases. This is not such a case. There has been so many gaps in the evidence led by the prosecution and so much left unexplained in, and by, the evidence of the medical witnesses, that the conclusion arrived at by the trial court and Court of Appeal should not stand. Besides, the finding by the trial Judge that the cause of death was a fractured skull when there was no evidence to that effect is sufficient ground to set aside the judgment of the High Court and of the Court of Appeal.

For these reasons I too would allow the appeal. I agree that the appellant should be convicted of a lesser offence as contained in the leading judgment. I abide by all the orders made by my learned brother, Kalgo, JSC.

Appeal allowed.

P.21