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.