Emmanuel Ochiba V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

MARY U. PETER-ODILI, J.S.C.

This is an appeal against the decision of the Court of Appeal, Jos Division, hereinafter referred to as the court below. The decision of the court below was delivered on the 29th day of June, 2010 affirming the conviction and sentence of the appellant for the offence of Culpable Homicide punishable with death contrary to section 221, of the Penal Code.

At the trial High Court presided over by the Honourable Justice Yargata Nimpar of the High Court of Justice, Jos, Plateau State before whom the appellant was arraigned, on the 9th day of November, 2005 and who convicted the appellant for Culpable Homicide and sentenced him to death by hanging.

The appellant appealed to the Court of Appeal, Jos unsuccessfully as that court dismissed the appeal and affirmed the conviction and sentence of the appellant. Against that judgment of the court below delivered on the 29th day of June, 2010 that the appellant has appealed to this court.

A brief of the facts is that the charge against the appellant arose from an event leading to the murder of one Godwin Momoh on the 12th day of September 2001 along Tafawa Balewa Street adjoining Langtang Street, Jos. The incident occurred when the deceased together with Barrister Jonathan A. Mawiyau and Chukwudi Achi were walking to their various houses at Langtang Street, Jos. Jonathan A. Mawiyau testified at the trial of the Appellant before the High Court as PW1 and he stated that on that day, he along with Chukwudi Achi and the deceased were stopped by some policemen including the appellant, who ordered them to come. That the three of them raised their hands up, obeyed the instructions of the policemen. He said the appellant asked them to introduce themselves and kneeling they complied. PW1 said the appellant then collected a gun from one of the policemen and shot the deceased on the chest and the deceased died instantly.

PW1 identified the deceased saying the incident occurred between 12 noon and 1 pm. He said earlier before the appellant and other policemen called them, he saw them enter a shop and that he specifically saw the appellant come out of the shop with a bottle of hot drink which he drank. PW1 went on to say that the appellant wore the uniform of a constable which was confirmed by the Investigating police officer (PW3) who said at the time of incident the appellant was a constable.

PW2, the father of the deceased was called and he rushed to the scene and found the son in a pool of blood. That they took the body home and after sometime the Commissioner of Police sent somebody to find out what happened and the appellant was arrested that night.

PW2 said he was present at the orderly room trial. That when appellant was brought from the cell, he was asked if he knew PW2 and on learning who PW2 was, the appellant knelt down to beg PW2 to forgive him.

The appellant testified on his own behalf as DW1 and he denied the whole incident including either seeing the deceased, PW1 or even begging PW2.

There was no other witness for the defence.

At the conclusion of final addresses on the 28th day of July, 2005 the learned trial judge on the 9th day of November, 2005 in his judgment found the charge moved against the appellant and had him convicted and sentenced to death. Those decisions were affirmed by the court below.

At the hearing the appellant through counsel, Elisha Y. Kurah Esq in consonance with appellant’s brief raised two issues from the grounds of appeal which are:

1. Whether the Honourable Court of Appeal was right in affirming the conviction and death sentence passed on the appellant by the trial court on the basis that the offence with which the appellant was charged was proved beyond reasonable doubt.
2. Whether the failure by the prosecution to call other eye witnesses did not amount to withholding evidence.

For the Respondent through counsel on its behalf were couched three issues which are as follows:

1. Whether the identity of the appellant was established beyond reasonable doubt.
2. Whether the conviction of the appellant could be said to be fatal for failure to call more than one eye-witness.
3. Whether the charge against the appellant was moved beyond reasonable doubt.

The two versions of issues are in the main similar but those of the appellant seem to me more easily adaptable and I shall utilize them.

On Issue No. 1 in which is posed the question whether the Court of Appeal was right in affirming the conviction and death sentence passed on the appellant by the trial court on the basis that the offence with which the appellant was proved charged was beyond reasonable doubt.

Learned counsel for the appellant, Mr. Kurah had contended that for a conviction and sentence of the appellant to stand, the law requires the prosecution to prove beyond reasonable doubt that:

1. that the death of a human being had actually taken place.
2. Such death was caused by the accused person.
3. The act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as:

a. The accused knew or had reason to know that death would be the probable and not only the likely consequence of his act;

b. The accused knew or had reason to know that death would be the possible and not only the likely consequence of any bodily injury which the act was intended cause.

He anchored those principles on the cases as follows:

1. Gira v. State (1996) 4 NWLR (Pt. 443) 375
2. Nwaeze v. State (1996) 2 NWLR (Pt.428) 1
3. The State v. Fatai Azeez (2008) ALL FWLR (Pt. 424) 1423 at 1455 – 1456 F – D
4. Ndukwe v. The State (2009) ALL FWLR (Pt. 464) 1447 at 1466 F – H,

For the appellant was further submitted that the evidence led before a trial court may be direct or circumstantial and whichever is the case, it must be evidence which would establish the guilt of the accused beyond reasonable doubt. That in this case the prosecution relied heavily on the evidence of the PW1 especially in respect to the identity of the culprit in a situation where PW1 had never seen the accused before that day of incident. That an identification parade was an absolute necessity and failure of such was fatal. Since the trial court rejected what had taken place as an identification parade.

Mr. Kurah of counsel went on to say that the identification of the PW1 cannot be taken as without fault when PW1 said that he was under tension when he was asked to kneel down. That the trial and subsequently the court below ought to have considered the circumstances and found it unsafe to convict the appellant based on his purported identification by the PW1. He cited the case of Sunday Ndidi v. The State (2007) ALL FWLR (Pt.381) 1617 at 1638 F – G.

That there was need for the trial court to caution itself in considering the evidence of identification as proffered by the PW1, when the identification parade was rejected by the court since it failed the test upon which it could be taken as such. That in the peculiar circumstances of this case, a proper identification parade was absolutely necessary. He cited the following cases:

1. Abudu v. The State (1985) 1 NWLR (Pt.1) 55 at 62 A- E
2. Sunday Ndidi v. The State (Supra) at 1638 – 1639 H – F.
3. Ebri v. The State (2004) ALL FWLR (pt. 216) 420 at 437 B – C
4. Segun Balogun v. Attorney-General of Ogun State (2002) FWLR (Pt. 100) 1287 at 1301;
5. Kabiru Alamu v. The State (2009) 4 MJSC 147 at 163 C- H.

Learned counsel for the appellant said the evidence of PW1 is far from being positive and/or conclusive as to who shot and killed the deceased. That his testimony did not place the appellant in a proper position that would have enabled PW1 see when the appellant fired the shot that killed the deceased. He stated that a lot of questions arose which begged for answers and so the evidence of Chukwudi Achi, who the PW1 said was present became crucial so as to clear the air. That PW1’s evidence had some contradictions and the court cannot pick and chose what to believe and which to disbelieve. He referred to Onubogu v. The State (1974) 9 SC 1 at 17 – 21.

Mr. Kurah said the trial court did not consider the written statement of PW1 which did not tally with the evidence of the PW1 in court. He referred to Okafor v. Okafor (2000) FWLR (Pt. 1) 17 at 25.

Responding, learned counsel for the respondent, Mr. Pwajok stated that clearly in evidence were that PW1 saw the appellant with other policemen who entered a liquor shop, bought some drink, came out and took it. Also that PW1 said he specifically saw the appellant with a small bottle of hot drink and there was an exchange of words between PW1 and appellant. Mr. Pwajok of counsel said PW1 in evidence said appellant wore the uniform of a constable which fact was confirmed by PW3 as appellant was a constable at the time. That there was nothing to suggest at the trial that the observation of the PW1 was impaired in any way. He cited R v. Turnbull (1976) 3 All E. R. 549; Mbenu & Ors v. The State (1988) 7 SCJ (Pt. II) 221 – 222; Ndidi v. The State (2007) All FWLR (Pt. 331) 1617 at 1638 F – H.

Learned counsel for the respondent said the visual spontaneous evidence of identification was not discredited and therefore good enough in a murder trial. He cited Adevemi v. The State (1991) 1 NWLR (Pt. 170) 679 at 694; Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 at 523; Adamu v. The State (1991) 4 NWLR (Pt. 187) 530 at 537 – 540.

Mr. Pwajok of counsel for the respondent said in order to secure a conviction for the offence of culpable homicide punishable with death under Section 221 of the Penal Code the prosecution as in the instant case must prove, (a) that the deceased had died; (b) That the death of the deceased was caused by the accused; and (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. He cited Adekunle v. The State (2006) All FWLR (Pt. 332) 1452 at 1466 G – A; Adava v. The State (2006) All FWLR (Pt. 311) 1777 at 1785 paras E – G; Ogba v. The State (1992) 2 NWLR (Pt. 222) 164; Ugwu v. The State (2002) All FWLR (Pt. 103) 330.

It was further submitted that PW2, the father of the deceased confirmed that he went and carried the body of the deceased from the scene and later buried same on the instruction of the Commissioner of Police. That medical report was not of essence because death was instant after the gun shot. He cited Adekunle v. The State (supra) at 1466 paras E – F; Akpan v. The State (1994) 12 SCNJ 140 at 152; Jua v. State (2010) 2 MJSC 152 at 196 paras D – E; Alabi v. The State (1993) 7 NWLR (pt. 307) 511; Amobi v. The State (2008) 5 SCNJ 136 at 149.

That the standard of proof required had been met and that is beyond reasonable doubt and not beyond all shadow of doubt. He referred to Agbo v. State (supra) 1417 paras E – G; Jua v. The State (supra) at 170 paras C – G.

That this court can only interfere with the concurrent findings of the two Lower courts if the findings were perverse and that is not the case here. He cited Udo v. The State (2006) All FWLR (Pt.337) 456 at 467 C- D; Olaiya v. State (2010) MJSC (Pt.1) 73 at 88 paras E – G; Bakare v. State (1984) 1 NWLR (pt. 52) 597; Onyelokwo v. The State (1992) 8 NWLR (Pt.230) 444; Adekunle v. The State (supra) at 1477 paras. D – E.

On the issue of identification of the appellant, the lower court in accepting what the trial court said:-

“PW1 had a good view of the Appellant at close range. First, when the Appellant came out of the Hotel drinking from a bottle of “Hot” drink. Secondly when he shot the deceased who at the time was kneeling beside him (PW1). All of this occurred in broad day light (noon) and at very close distance. At no time during trial did learned counsel for the Appellant suggest that the observation of PW1 was impaired by inclement weather or distance. It is only when the identity of the accused person (Appellant) is really in issue that an identification parade becomes necessary………

A review of the evidence led, particularly excerpts from the judgment confirm that the learned trial judge was right to hold that the Appellant shot and killed the deceased on the 12th September, 2001″.

It is not difficult to flow along with the concurrent findings of the two courts below and that is that nothing impaired the observation put forward by the PW1 whose identification of the appellant as the culprit was instantaneous and not discredited. The evidence of PW2, father of the deceased was not impugned by cross-examination as to who the deceased was and the state PW2 found him and took the corpse home. Also not lost in view is the encounter at the police station with the Appellant which evidence was not contradicted. The circumstances made the absence of a medical report of no moment. I place reliance on Mbenu & Ors. V. The State (1988) 7 SCNJ (Pt.II) 221 – 222; Ndidi v. The State (2007) All FWLR (Pt.381) 1617 at 1638 F – H; Adevemi v. The State (1991) 1 NWLR (Pt. 170) 679 at 694; Adamu v. The State (1991) 4 NWLR (Pt. 187) 530 at 537 – 540.

The next question to tackle is whether the conditions under which an offence of culpable homicide punishable with death under Section 221 of the Penal Code under which the appellant as accused was convicted and sentenced. The conditions to be met are thus:-

(a) That the deceased had died;

(b) That the death of the deceased was caused by the accused; and

(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

The Court below following on the heels of the findings of the trial High Court found those conditions properly met and upon sound evidence supporting. lt is in the light of these concurrent findings so made that there is no gain saying that this Court has no business interfering therein. I anchor on the following cases:-

Olaiya v. State (2010) MJSC (Pt.1) 73 at 88; Bakare v. State (1984) 1 NWLR (pt.52) 597; Udo v. The State (2006) All FWLR (Pt.337) 456 at 467 C – D.

The standard of proof required in a criminal trial such as the one at hand, that standard beyond reasonable doubt has been established and the appellant is merely beating about the bush in his attempt to take a contrary position not buttressed by anything worthy of note. The materiality of the contradictions appellant’s counsel made a hue and cry over are not in place. I resolve issue 1 against the appellant.

On the second issue of whether the failure by the prosecution to call any other eye witness did not amount to withholding evidence.

In answer to that question above, learned counsel for the appellant said the prosecution had applied under section 185(1) Criminal Procedure Code (C.P.C.) through an ex-parte motion for leave to prefer a charge against the appellant attaching statements of 11 (eleven) witnesses but during trial only called two of those witnesses, which include one Ubi Eze who was an eye witness. Mr. Kurah of counsel said, Ubi Eze’s evidence was essential as in his statement to the police had said the person who shot the deceased had the rank of a sergeant. That though the prosecution is not obliged to call a host of witnesses on the same point, it had a duty to call all material or vital witnesses so that all the issues would be properly placed before the court. He cited the cases of:

The State v. Azeez & 5 Ors (2008) ALL FWLR (Pt.424) 1423 at 1455 – 1456 F – D;

Philip Onogodo v. The State (1981) 5 SC 4 at 17

Umoru Usufu v. The State (2008) ALL FWLR (Pt.405) 1731 at 1752 E – H

Learned counsel for the appellant stated that though the statement of Ubi Eze was not tendered in evidence, the fact that it was part of the documents exhibited to the motion ex-parte seeking leave of the trial court to prefer charge against the appellant and is part of the Record of Appeal is sufficient for the court to look at it and determine the materiality of his evidence as was done in the case of The State v. Azeez & 5 Ors (Supra). He stated further that Ubi Eze was a vital witness that ought to have been called by the prosecution as his evidence would have settled one way or the other the actual perpetrator of the crime in question.

Also that both from the statement of the PW1 before trial and in evidence in court PW1 had harped on the fact that one Chukwudi Achi was with him at the time of the incident and therefore an eye-witness and the prosecution neither recorded Chukwudi’s statement nor called him to testify which amounted to withholding evidence and thereby brought into operation Section 149(d) of the Evidence Act. He referred to the cases.

The Republic v. Edward Obinga v.. Anor (1965) ALL NLR 501 at 503;

Rose Oshodin v. The State (2002) FWLR (Pt.90) 1336 at 1347 para H

In responding, learned Attorney-General of Plateau State said there was no need to call Chukwudi Achi since the trial Judge who heard and saw PW1 believed him, having found PW1’s evidence credible and believable. That the assessment of the credibility of witnesses and the ascription of probative value to evidence are the function of a court of trial which had the advantage of seeing and watching the demeanour of the witnesses. He said those are not the functions of the court below or this court in the exercise of appellate jurisdiction to interfere with the findings of the trial court on the assessment of credibility of witnesses. He cited Bayo Adelumola v. The State (1988) 3 SCNJ (Pt.1) 63 at 79; Ndidi v. The State (supra) at 1649 Para E.

Mr. Pwajok for the respondent said the defence at the trial court did not cross- examine PW2 on the evidence as to what transpired between him and the appellant when he was brought out from the cell and told that PW2 was the father of the deceased. That this was tantamount to acceptance of the piece of evidence as true and correct. He referred to Okosi v. State (1989) 1 NWLR (Pt.100) 642; Agbo v. State (2006) ALL FWLR (Pt. 309) 1380 at 1400 Paras F – H.

Mr. Pwajok went on to say that in respect to the position of the appellant that the prosecution should have called other witnesses including Chukwudi Achi, that the prosecution is not so duty bound. That it had no obligation to call a host of witnesses or to adduce every available evidence to prove its case in order to discharge it’s burden and a conviction can be secured on the evidence of a sole witness. He cited Archibong v. State (2006) ALL FWLR (Pt.232) 1747 at 1773 – 1774 Paras H – B; Akpan v. The state (1991) 3 NWLR (pt.182) 695; Mohammed v. The State (1991) 5 NWLR (Pt.192) 438; Abogede v. The State (1996) 4 SCNJ 223 at 232 – 233; Oduneye v. The State (2001) 1 SCNJ 25.

That there was no necessity for corroboration of the evidence of PW1, learned counsel for the respondent contended. He cited Garko v. State (2006) 6 NWLR (Pt.977) 524 at 542 Paras B – E; Olayinka v. The State (2007) 4 SCNJ 53 at 73; State v. Ajie (2000) 3 NSQCR 53 at 66.

What the appellant through counsel in answering the question posed here as to whether it was not necessary to call the other eye witness in proof of the case. The appellant is laying a burden for the prosecution which the law has not provided for. The law in proof of criminal offences including the capital one which is the subject of his appeal is that of proof beyond reasonable doubt. In that regard if through only one witness that burden is discharged, so be it and that is sufficient. Proof does not necessarily mean, proof by specific number of witnesses without which, it cannot be said that the case has been established by the standard required. lt is rather lame to call for the operation of section 149(d) of the Evidence Act against the prosecution for failing to call the witnesses that defence felt ought to be called. Since the prosecution was able to make out their case adequately within the standard of proof required, there was no need for surplussage or superfluity serving no useful purpose. See the cases of Oduneye v. The State (2001) 1 SCNJ 25; Akpan v. The State (1991) 3 NWLR (Pt.182) 695; Mohammed v. The State (1991) 5 NWLR (Pt.192) 438.

There being nothing upon which I can upset what the court below did, I dismiss this appeal and uphold the decision of the court below which affirmed the conviction and sentence of the appellant.

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SC.270/2010