Emmanuel Ochiba V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BODE RHODES-VIVOUR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of Hon. Justice Y. Nimpar sitting in the Jos High Court, Plateau State, delivered on the 9th of November 2005. The Appellant was found guilty of culpable homicide and sentenced to death by hanging. The charge against the Appellant read:

That you Emmanuel Ochiba on or about the 12th day of September, 2001 along Tafawa Balewa Street in Jos did commit Culpable Homicide punishable with death in that you caused the death of one Godwin Momoh by doing an act to wit: Shooting him with a Gun in the chest with the intention of causing his death and thereby committed an offence punishable under Section 221 (b) of the Penal Code.

The accused person/Appellant pleaded not guilty to the charge. To prove the case the prosecution called three witnesses and tendered one exhibit, (the statement of the accused person). The Appellant testified for himself. He did not call any witness or tender any exhibit. The facts of this case are as follows: On the 12th day of September 2001 there was sporadic shooting in some areas of Jos. The usual unpredictable mayhem flared up once again.

Between the hours of 12- noon and 1 p.m., Godwin Momoh (deceased), Jonathan A. Mamiya P.W. 1 and Chukwudi Achi were walking along Tafawa Balewa Street on their way home after the shooting subsided at about 11.40 a.m. As they approached Langtan Street/Tafawa Balewa Street intersection a Police open Van and another Vehicle stopped in front of Mandela Hotel. The occupants of the Vehicles disembarked, went into the Hotel and came out with bottles of “hot” drinks in their hands, drinking.

The Policemen of which the Appellant was one of them ordered them to identify themselves which they did. They raised their hands up and knelt down. The Appellant then went back to the Vehicle, collected a gun and shot the deceased in the chest. He died instantly. The father of the deceased, P.W. 2 rushed to the scene of shooting on hearing of the incident and found the body of his son in a pool of blood. He took his dead son home and buried him on the directives of the Police who told him that the mortuary was full due to the crisis. Soon after the shooting an irate mob destroyed one of the Police Vehicles by setting it ablaze.

In a considered Judgment delivered on the 9th of November 2005, the learned trial Judge sentenced the Appellant to death by hanging. Dissatisfied with the decision the Appellant lodged an appeal in this court, and in accordance with Order 17 Rules 2 and 4 of the Court of Appeal Rules, briefs were filed and exchanged. The Appellants brief was filed on the 22nd of May 2006 while the Respondents brief filed on the 13th of July 2006 was deemed duly filed and served on the 30th of March, 2010.

At the hearing of the appeal on the 30th of March 2010 learned counsel for the Appellant Mr. R. N. Okonkwo adopted his brief and urged us to allow the appeal.

Learned counsel for the Respondent, Mrs. O. D. Milaham, the Assistant Director of Public Prosecutions, Plateau State adopted her brief and in amplification of it observed that authorities abound that the court can convict on the evidence of one witness. Concluding her address she urged us to dismiss the appeal since the case was proved beyond reasonable doubt.

A sole issue was formulated for determination in the Appellants brief. It reads:

1. Whether or not the prosecution had proved its case beyond reasonable doubt to justify the conviction and sentence visited on the Appellant.

On his part, learned counsel for the Respondent formulated four issues for determination. They are:

1. Was the identity of the Appellant established beyond reasonable doubt.
2. Whether the trial court could convict upon the evidence of only one witness.

3 Whether there were any contradictions in the case of the prosecution

4. Whether the prosecution proved its case beyond reasonable doubt to justify the conviction and sentence of the Appellant.

In this appeal the sole issue formulated by the Appellant is that the prosecution failed to prove his guilt beyond reasonable doubt. It is the duty of the Appellant to establish before us that it is so and this court must examine that assertion against evidence relied on by the trial court in convicting the Appellant.

Sec: Ekpe V. State 1994 9 N.W.L.R. Pt. 368 p. 263