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SAMUEL ABENGOWE
V.
REX
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
2ND DAY OF NOVEMBER, 1936
2PLR/1936/52 (WACA)
OTHER CITATION(S)
2PLR/1936/52 (WACA)
(1936) III WACA PP. 85 – 87
LEX (1936) – III WACA PP. 85 – 87
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
SAMUEL ABENGOWE — Appellant
AND
REX — Respondent
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ORIGINATING COURT(S)
APPEAL AGAINST CONVICTION BY HIGH COURT.
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REPRESENTATION
Appellant in person
Ivor Brace for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Manslaughter — Injection by unqualified person — Cause of death — Analyst’s report wrongly excluded — Duty of prosecution to specify precise negligence relied upon
CRIMINAL LAW AND PROCEDURE:- Manslaughter due to criminal negligence — Duty of specificity as to type of negligence relied on by prosecution — Failure thereto — Legal effect
HEALTHCARE AND LAW — POISONING:- Alleged administration/injection of poison by unqualified person leading to death of woman — Burden of proof on prosecution to establish manslaughter — Proof of pre-existing medical condition (syphilis) — Where autopsy inconclusive as to cause of death — How treated
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal allowed and conviction quashed):–
(1) That there was not sufficient evidence to establish that death was caused or accelerated by unlawful act of accused.
(2) The post mortem doctor could not form any opinion as to the cause of death because the state of decomposition made a physical examination difficult. The doctor however came to the conclusion that the deceased had been suffering from syphilis for some years, which he considered would render the deceased more susceptible to poison.
(3) The report of the kidney and liver of the Government analyst was wrongly excluded.
(4) Although it is obvious from the record that accused was tried for the offence of manslaughter by negligence it is by no means clear what particular form of negligence was relied on by the prosecution. It was the duty of the prosecution to disclose with certainty and precision and without inconsistency the particular form of negligence alleged and that was done.
(5) It is impossible on the evidence to come to the conclusion that the deceased died from an overdose of poison and it is equally impossible, in view of the rejection of the analytical report, to eliminate poison as the cause of death. That being so it is not possible to conclude that deceased died from septicæmia caused by the injection.
MAIN JUDGMENT
The following judgment was delivered:- per KINGDON, C.J., NIGERIA.
Appellant was charged with and convicted of the offence of manslaughter. The particulars of the offence as they appear on the record are that:
“Samuel Abengowe on or about 23rd day of April, 1938, caused the death of a woman Nwantu Oriaku.”
From the husband’s evidence it appears that he took his wife, the deceased, to appellant in April last. She was then suffering from sores on back and breast and had been ill for three years. Appellant, an unqualified man, filled a syringe with a red-looking liquid and pushed the nozzle of the syringe into the right buttock of the deceased and pumped the liquid into her. Deceased at once fainted and the next day the husband found that her right leg and buttock were swollen and the buttocks were peeling and looked red. The following day she died.
The matter was not reported to the police until some seventeen days after the death of the woman.
Dr. Nelson Wallace says that she appeared to have been dead about three weeks when he performed the post-mortem examination. As was to be expected the doctor could not form any opinion as to the cause of death because the state of decomposition made a physical examination difficult. The doctor did however come to the conclusion that the deceased had been suffering from syphilis for some years, and as he considered this would render her more susceptible to poison he removed a part of the liver and kidney and sent it to the Government analyst, who made a report.
When the defence sought to put in this report the Court ruled that it was inadmissible. No reason for its exclusion was given, and we can conceive of none that would on all the facts disclosed at the trial have justified its exclusion when sought to be put in by the defence.
Although it is obvious from the record that accused was tried for the offence of manslaughter by negligence it is by no means clear what particular form of negligence was relied on by the prosecution.
It was obviously the duty of the prosecution to disclose with certainty and precision and without inconsistency the particular form of negligence alleged.
This has not been done, and it is impossible to gather from the record whether the negligence relied on was that (a) the needle was dirty, or (b) the liquid contained dirt, or (c) the liquid contained an overdose of arsenic or other poison.
From the brief record of the Crown Counsel’s final address to the Judge it would appear that he had not made up his mind whether the evidence justified him in submitting that the deceased had died from septicaemia or an overdose of poison injected with the object of curing syphilis, for he said “There may have been no poison but only dirt injected.”
The appellant did not give evidence at the trial, but that does not absolve the prosecution from proving that the death of deceased was caused by or accelerated by the unlawful act of the accused.
The post-mortem examination has not revealed the cause of death. It is impossible on the evidence to conclude what the deceased died from. If poison was found in the body it would have been the duty of the Judge to consider whether it was the cause of death. It does not follow that because poison did cause or contribute to death that accused was guilty of manslaughter.
If the Judge had come to the conclusion that arsenic had been administered medicinally and caused death he would then have had to consider whether the amount administered was so excessive as to establish that the accused was guilty of manslaughter by administering an overdose.
It is impossible on the evidence to come to the conclusion that that the deceased died from an overdose of poison and it is equally impossible, in view of the rejection of the analytical report, to eliminate poison as the cause of death. That being so it is not possible to conclude that deceased died from septicæmia caused by the injection.
The evidence that septicæmia caused death is of the slightest. The sole evidence that suggests death by septicæmia is the fact that a swelling appeared, in the neighbourhood of the spot where the injection was effected, within twenty-four hours of the injection and the doctor’s evidence that it would be consistent with a dirty injection for swelling to appear within twenty-four hours. There is no evidence that a dirty needle was used or that there was any dirt in the liquid injected. It is impossible to dismiss the possibility that the swelling may have been due to some cause other than a dirty injection, especially when it is remembered that deceased was a syphilitic of several years’ standing and was suffering from sores when injected.
In our opinion the conviction was in all the circumstances one which could not be supported by the evidence.
The appeal is accordingly allowed, the conviction is quashed, and it is directed that a judgment and verdict of acquittal be entered.
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