Idoko Ochani V. The State (2017)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The appellant herein (2nd accused), his father (1st accused) and his sister (3rd accused) were all arraigned before the High Court of Benue State, sitting at Makurdi on a two-count charge as follows:

“1. That you, OCHANI IDOKO, IDOKO OCHANI and AGNES IDOKO on or about the 28th day of July, 2002 at about 1200 hrs at Ukwo Centre. Owukpa, Ogbadibo Local Government Area, Benue State within the jurisdiction of this Court agreed to do an illegal act to wit: cause the death of one Mathew Adikwu by cutting him with matchet on the head and hitting him with pestle and wood on the forehead and back respectively which acts were done in pursuance of the agreement and that you thereby committed an offence punishable under Section 97 of the Penal Code.

2. That you, OCHANI IDOKO, IDOKO OCHANI and AGNES IDOKO on or about the 28th day of July, 2002 at about 12 hours at Ukwo Centre, Owukpa in Ogbadibo Local Government Area of Benue State within the jurisdiction of this Honourable Court did commit Culpable Homicide Punishable with death in that you caused the death of Mathew Adikwu

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by cutting him with a matchet, on the head and hitting him with pestle and wood on the forehead and back respectively with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code.”

The facts that gave rise to the charge are as follows: There was a land dispute between the appellant’s father and the deceased, Mathew Adikwu. The dispute went to Court and was decided in favour of the deceased. There was a toilet on the land, which the deceased did not want the accused persons to use. Although there was an appeal against the judgment there was nothing before the Court to show that it had been determined. However, the appellant’s father obtained an order for stay of execution of the judgment. The deceased remained adamant that the appellant’s family members could not use the toilet, which he claimed belonged to him. The prosecution’s case was that the appellant and the co-accused attacked the deceased in the disputed toilet on 28/7/02 and killed him. The accused persons pleaded not guilty to each count of the charge and contended that it was the deceased who attacked the 2nd accused i.e. the appellant.

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The prosecution called four witnesses while the accused persons testified on their own behalf and called four other witnesses. At the conclusion of trial, the trial Court found the appellant and his co-accused not guilty of the offence of conspiracy. However he and the 1st accused were sentenced to death by hanging for culpable homicide punishable with death under Section 221 of the Penal Code. The 3rd accused, Agnes Idoko, was convicted of the lesser offence of criminal force, contrary to Section 265 (a) of the Penal Code and sentenced to a fine of N1000 or a term of three months imprisonment. All three convicts appealed to the Court of Appeal, Jos Division, which on 16th December 2010 dismissed the appeal and affirmed the convictions and sentences imposed by the trial Court. The appellant is still dissatisfied and has further appealed to this Court.

At the hearing of the appeal on 2/12/2017, Chief Mamman Mike Osuman, SAN leading a team of learned counsel, adopted and relied on the amended appellant’s brief, which was deemed filed on 28/1/2016 and urged the Court to allow the appeal. Bola Aidi Esq. adopted and relied on the respondent’s brief filed on

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28/1/2016 in urging the Court to dismiss the appeal. The appellant distilled 3 issues for the determination of the appeal, which were adopted by the respondents, as follows:

1. Informed by the decision of this Apex Court in Princewell Vs The State, did the lower Court heed the cautions and indices enumerated therein before concluding that PW2’s evidence along with Exhibit 1 constitute sufficient legal evidence regarding the identity of the deceased
2. Whether the lower Court sufficiently re-evaluated the facets of evidence relating to the physical attacks occasioned on the appellant before rejecting his Plea of self defence
3. Whether PW1’s evidence should be construed as tainted by reason of his relationship with the deceased.

Issue 1

Before commencing the consideration of this issue, it is necessary to note that Exhibit 1 referred to is the autopsy report as to the cause of death of the deceased prepared by PW2, Dr. Teraver Samuel Abiem, a medical doctor attached to the General Hospital, Otukpo, Benue State. It is contended by learned senior counsel for the appellant that the prosecution failed to link the body upon which an autopsy

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