Does production of a medical certificate effectively dispense with attendance of its author in court?
INIOBONG MATTHEW ETUK-UDO v. THE STATE
CITATION: (2020) LPELR-49164 (CA)
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar
On Tuesday, 7th January, 2019
Suit No: CA/C/07C/2018
Before Their Lordships:
OBANDE FESTUS OGBUINYA, JCA
YARGATA BYENCHIT NIMPAR JCA
MUHAMMED LAWAL SHUAIBU, JCA
INIOBONG MATTHEW ETUK-UDO -appellant(s)
THE STATE -respondent(s)
LEAD JUDGMENT DELIVERED BY OBANDE FESTUS OGBUINYA, J.C.A.
FACTS OF THE CASE
On or about June 6, 2009, at about 10pm, the appellant, with two other persons at large, was alleged to have unlawfully killed Monday Matthew and Owoidoho Monday Matthew by pouring petrol on them and setting them ablaze. On the same day, they were also, alleged to have burnt down the Holy African Church building and Q-Link motorcycle, the latter being the property of Elder Ime Matthew. The police duly carried out investigations into the allegations. Thereafter, the appellant was arraigned before the High Court of Akwa Ibom State for the offences of murder and arson contrary to the provisions of Sections 323 and 464 of the Criminal Code Cap. 38, Vol.2, Laws of Akwa Ibom State 2000 respectively. The appellant pleaded not guilty to the 2-count information.
Following the plea of not guilty, the High Court had a full-scale determination of the case. In proof of the case, the respondent fielded one witness, PW1, and tendered eight exhibits. In defence of the case, the appellant testified in person, as DW1, and called no other witness. At the closure of evidence, the parties, through their respective counsel, addressed the Trial Court. In a considered judgment, delivered on July 10, 2017, the Trial Court convicted the appellant on the two counts and sentenced him to death and life imprisonment respectively.
Aggrieved by this, the appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on the appellant’s issues, as follows: 1. Whether the learned trial Judge was right when he admitted and placed reliance on Exhibits 3, 4, 5, 6 and 7 to convict and sentence the appellant to death. 2. Whether having regards to the evidence adduced by the parties, the learned trial Judge was right when he held inter alia that the prosecution had proved its case against the appellant beyond reasonable doubt and accordingly convicted and sentenced the appellant to death by hanging.
On issue one, the appellant submitted that the trial Court erred in law when it attached probative value to exhibits 3-7. He drew the distinction between admissibility of document and weight to be attached to it and stated that PW1, who tendered exhibits 3-7, was not their maker, which made them documentary hearsay and submitted that hearsay evidence was not admissible in law. He relied on Yusuf v. Mashi (2017) All FWLR (Pt. 912) 664; Ifegbu v. UBN Plc. (2011) All FWLR (Pt. 602) 1676 and Okereocha v. Ministry of Commerce & Tourism (2001) 1 NWLR (Pt. 693) 126; (2000) LPELR-5677 (CA).
On issue two, the appellant submitted that the burden was on the respondent to prove the offence beyond reasonable doubt. He cited Section 135 of the Evidence Act 2011 and submitted that the trial Court wrongly relied solely on the confessional statement to convict the appellant. He noted the import of extra-judicial statement as explained in Nasiru v. State (1999) 2 NWLR (Pt. 589) 87; (1999) LPELR-1945 (SC)and reasoned that the trial Court did not test the truthfulness of the confession with other pieces of evidence as required by law.
On issue one, the respondent submitted that a document could be tendered through a person who is not the maker and cited Section 83 of the Evidence Act, 2011 and stated that PW1 laid the proper foundation before tendering exhibits 3 and 4, which were admissible under Section 200 of the Criminal Procedure Code of Akwa Ibom State and Section 55 of the Evidence Act, 2011. He submitted that exhibits 5-7 were procured by PW1 during investigation and could be tendered by him. He described the evidence of PW1, the Investigating, Police Officer (IPO), as direct evidence of what he did and not hearsay. He relied on Obot v. State (2014) LPELR-23130 (CA).
On issue two, the respondent submitted that the confession was part of the case of the prosecution and that the trial Court duly conducted trial-within-trial before the admission of the confessional statement. He submitted that the confession was taken to superior police officer, which showed transparency in obtaining it. That a retracted confession could still be considered by the Court. He relied on Adeyemi v. State (2012) 9 ACLER 203; (2012) LPELR-7956 (CA), Bright v. State (2012) 8 NWLR (Pt. 1302) 295; (2012) LPELR-7841 (SC), and Ekpo v. State (2008) LPELR – 4370 (CA).
Finally, that a voluntary, direct, positive, and unequivocal confession could be used to convict an accused relying on Galadima v. State (2012) 18 NWLR (Pt. 1333); (2012) LPELR-15530 (SC).
RESOLUTION OF ISSUES
In resolving issue one, the court explained that by the import of Section 55(1) of the Evidence Act, 2011, the production of a medical certificate (report) effectively dispenses with the attendance of its author in Court. The Court relied on Adesina v. The People of Lagos State (2018) 8 NWLR (Pt. 1673) 125 and held that such a certificate could be tendered through an investigating Police Officer (IPO) and that the respondent’s failure or neglect to call the medical practitioner, who conducted the autopsy examination on the corpse of the deceased and authored exhibits 3 and 4, as a witness did not vitiate its admission through PW1, the IPO, and its validity.
The court noted that the Appellant’s argument, which appears dazzling is totally spent and misplaced in the wide domain of the adjectival law. Also the heavy weather, which the appellant made about the admission of exhibits 3 and 4 is unwarranted in law. This is because medical evidence, which encompasses medical report, is no longer sine qua non for proof of homicide cases in criminal jurisprudence and it is settled law, that medical evidence is rendered otiose where: death is instantaneous on attack, the cause of death is known or could be inferred from the circumstances of evidence adduced or there is abundant evidence of the manner of death. Reliance was placed on Ogba v. State (1992) 2 SCNJ; (1992) LPELR-2273(SC); (1992) 2 NWLR (Pt. 222) 164, Afosi v. State (2013) 13 NWLR (Pt. 1371) 329; (2013) LPELR-20751(SC), Maigari v. State (2013) 13 NWLR (Pt. 1384) 425; (2013) LPELR-20897(SC), Galadima v. State (2017) 12 NWLR (Pt. 1580) 339 amongst others.
The court also pronounced upon the fact that when exhibits 3-4 were tendered through PW1, there was no scintilla of opposition from the appellant’s learned counsel. Thus, in the eyes of the law, his failure to greet their admission with any contest is that he had sacrificed his right of objection even before the Court of Appeal. It is too late in the day for the appellant to invent an objection to the admissibility of those documents in the Court of Appeal. Reliance was placed on Oseni v. State (2012) 5 NWLR (Pt. 1293) 351; (2012) LPELR-7833 (SC) amongst others.
On the second limb of the appellant’s quarrels with the trial court’s reliance on exhibits 3-7 in arriving at its decision, the court stated that going through the records of the trial court, the trial court did not rely on exhibits 3-7 in reaching its decision. It rather placed reliance solely on exhibit 2 – the appellant’s confessional statement. Therefore, on this score, the appellant’s argument is unsustainable. The Court resolved issue one against the appellant and in favour of the respondent.
In resolving issue two, the court held that the prosecution has three avenues/means to prove commission of crimes. They are through a confessional statement, or circumstantial evidence, or evidence of eye-witnesses. In addressing whether the respondent proved the ingredients of the offences in the light of the evidence before the trial court, the court held that a confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime and once a confession is relevant, it is admissible against an accused who made it except it is excluded in the manner stipulated by the provision of the Section 29(2) of the Evidence Act, 2011.
According to the court, when the pre-trial statement was admitted as exhibit 2, even though the appellant was its owner, it deserted the defence and metamorphosed into the respondent’s case. In the exhibit, the appellant made an undiluted admission of his commission of the alleged offences in conjunction with his fugitive friends. Thus, by a confession, the accused surrendered himself to the law and became his own accuser. The appellant’s confessional statement, exhibit 2, drowned his right to presumption of innocence, which is enshrined in Section 36(5) of the 1999 Constitution, as amended, as well as made him the undoubted owner of the requisite mens rea and actus reus in relation to the offences of murder and arson preferred against him. This issue was also resolved against the appellant and in favour of the respondent.
In conclusion, the Court of Appeal by a unanimous decision dismissed the appeal.
Julius Idiege, Esq. -For appellant(s)
Joseph Akpan, Esq.,
(Assistant Director, Ministry of Justice, Akwa Ibom State)
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