Emmanuel Egwemi V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MARY U. PETER-ODILI J.C.A (Delivering the Leading Judgment)

This is an Appeal by the Appellant against the judgment of Honourable Justice S. T. Hussaini, sitting at the High Court of Justice, Anyigba, Kogi State delivered on 16th December, 2004, convicting and sentencing the Appellant to death by hanging for the following offences, viz:

(a) Criminal Conspiracy.

(b) Culpable homicide punishable with death and

(c) Mischief.

FACTS:

The Appellant was originally arraigned at the High Court of Justice, Idah, Kogi State. On the order of the Honourable chief Judge of Kogi State, the case was transferred to the High court of Justice, Anyigba, Kogi State, where the matter commenced de novo. The appellant was arraigned at the High Court Anyigba, Kogi State, on 16th July, 2003 and charged with the offences of criminal conspiracy, culpable homicide punishable with death, voluntarily causing hurt and mischief contrary to Sections 97, 221, 245 and 327 of the Penal code Law Cap 89 Laws of Northern Nigeria, 1963 applicable to Kogi State. The appellant entered a plea of “not guilty” to all the charges, whereupon the prosecution called seven (7) witnesses in proof of its case, with the appellant testifying on his own behalf.

The incident which led to the Appellant’s conviction and sentence was alleged to have taken place at Okumaji in Ibaji Local Government Area of Kogi State on 29/11/98. The particulars of the offence as was alleged by the prosecution are that the Appellant along with other person named in the charge sheet, all of who were armed with dangerous weapons viz: guns, knives and machetes etc, invaded the home of one Alhaji Umaru Bamaiyi (the deceased) at Okumaji on 29/11/98, beat him up, caused the destruction of his properties as well as those of his wife and children beat up the deceased and his wife, abducted him and eventually killed him by causing him to drown at a river after which the deceased was pulled out of the river dead and the Appellant used his “knife” to cut off the head of the deceased.

It was alleged by the prosecution that the headless body of Alhaji Umaru Bamaiyi was thrown into the river while the appellant made away with the head of the deceased. It was further alleged that the deceased’s wife, Mallam Ramatu Bamaiyi was later hospitalized at the General Hospital, following the beating she received from these invaders.

The record of proceedings reveals that the deceased was the caretaker of a parcel of land allegedly belonging to one chief John Okolo, which parcel of land had been the subject matter of a dispute between Chief John Okolo and the Itoduma people. Equally revealed by the record is the fact that the deceased Alhaji Umaru Bamaiyi was killed not too long after he testified for the said chief John Okoio in the land dispute between him and the Itoduma people.

PW1 – PW3 and PW6 gave eye – witness accounts of the incident which led to the killing of the deceased. While PW1 – PW3 claimed to have witnessed the assault of Alhaji Umaru Bamaiyi and his wife from their respective hiding places, PW6 on the other hand, claimed to have witnessed the murder of Alhaji Umaru Bamaiyi from his own hiding place in the bush.

The prosecution gave evidence that all efforts to recover the headless body of the deceased from the river proved abortive.

The Appellant testified that he was arrested on 20/3/02 at Idah waterside on his way from Lokoja. He raised the defences of alibi and mistaken identity on the ground that he was not at home at the relevant time when the offence was allegedly committed and secondly that his name is Emmanuel Egwemi and not Emmanuel Nnaloka which is the name in the warrant of arrest shown to him.

It was argued on behalf of the Appellant at the Court Below that PW1 – PW3 and PW6 were “tainted” witnesses and that their testimonies were riddled with material contradictions. It was also argued that the identity of the Appellant was not proved beyond reasonable doubt and that his defence of alibi was not impugned by the prosecution. At the conclusion of the trial, the Appellant was found guilty and convicted of three out of the four offences, charged including culpable homicide punishable with death under Section 221 of the Penal Code and sentenced to death by handing.