Okolo Ochemaje V The State (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, JSC

The Appellant, Okolo Ochemaje, was tried at the Idah High Court for the offences of criminal conspiracy, culpable homicide punishable with death, hurt without provocation and mischief contrary to sections 97, 221, 246 and 307 of the Penal Code Laws Cap 89 Laws of Northern Nigeria as applicable in Kogi State. At the end of the trial the Appellant was found guilty of the offences and accordingly convicted and sentenced to death by hanging. This was in the trial court’s judgment on 19/12/2002.

Not satisfied, the Appellant went on appeal to the Court of Appeal. By its judgment on the 8/12/2005 the appeal was dismissed for lack of merit. The conviction and sentence of the trial court were affirmed.

Still not satisfied the Appellant has come on further appeal to this Court. Briefs have been filed and exchanged. The Appellant’s Brief was prepared by Mrs. Dorothy Ufot. She also prepared the Appellant’s Reply Brief. The Respondent’s Brief was prepared by Joe A. Abrahams, Attorney-General Kogi State.

From the grounds of appeal filed each of the parties formulated three issues for determination. Apart from differences in phraseology, they are, in substance, the same. I appreciate however that the Appellant’s issues one and two contain some assumptions. With respect to issue one learned counsel for the Appellant assumed that there were material contradictions. And with respect to issue two, she assumed that the alibi raised was not investigated and therefore not rightly rejected. These are the very issues for determination by the Court. It is only the court that determines whether these are material contradictions. Similarly it is the Court that determines whether the alibi raised was investigated and properly rejected. I would therefore reframe the Appellant’s issues one and two without the assumptions and take the issue three as formulated. These issues are:

Whether there are such material contradictions in the case of the prosecution which render it unsafe to sustain the conviction of the Appellant

Whether the Appellant’s defence of alibi was adequately considered and rightly rejected by the Courts below.

Whether the prosecution proved the death of the deceased beyond reasonable doubt having regard to the facts and circumstances of this case.

On the first issue of contradictions in the case of the prosecution, learned counsel for the Appellant Mrs. Ufot referred to various statements and conclusions of the Court of Appeal confirming the decision of the trial court and submitted that the Court erred. According to counsel, the learned trial judge was preoccupied with offering explanations for the unexplained contradictions and submitted that it was the duty of the prosecution and its witnesses to offer the explanations and not

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that of the trial court to do so. In support of this submission, learned counsel relied on Onubogu v. State (1974) ANLR 561 at 571; Ubani v. The State (2003) 18 NWLR (Part 851) 224 at 245; State v. Emine (1992) 7 NWLR (Part 256) 658 at 671; Felix Nwosu v. The State (Part 35) 348 at 349. It was the further submission of learned counsel that the prosecution’s evidence was so riddled with material contradictions and inconsistencies that it was clearly unsafe to convict upon it. Counsel referred further to the conclusion of the Court of Appeal to the effect that there were no material contradictions and submitted that the finding was perverse same, not having been supported by the evidence. She urged this court to re-evaluate the evidence in the printed record and make the appropriate finding of there being material contradictions fatal to the prosecution’s case. In support of this contention counsel referred further to Felix Nwosu v. The State (supra).

Learned counsel then went in details to highlight the contradictions which she submitted, were material and therefore fatal to the prosecution’s case. Learned counsel identified contradictions in the evidence of the PW1, 2 and 3 with respect to those present when the incident occurred, their evidence as to the neighbours who were present when the incident occurred, contradictions in the evidence of the PW1 and 2 as to the manner in which the deceased was carried away on a local stretcher and the people to whom they reported the incident when they came out of hiding and argued that they are material contradictions that create doubts in the case of the prosecution. Still highlighting the contradictions in the prosecution’s case, Mrs Ufot referred to contradictions in the evidence of the PW1, PW2 and PW5 regarding the hospitalisation of Madam Bameyi, the wife of the deceased, contradictions in the evidence of the PW5 and 6 with respect to the statements of the PW6 and Chief John Okolo and submitted that the contradictions were material and their totality therefore casts in the case of the prosecution and which doubts should be resolved in favour of the Appellant. Learned counsel drew our attention to the principles of re-evaluation by appellate courts in Onuchukwu & Ors v. The State (1998) 4 NWLR (Part 547) 576 at 570 and Felix Nwosu v. The State (supra) at 349 and invited us to re-evaluate the evidence of the prosecution witness to appreciate the doubts created by the contradictions highlighted and to resolve same in favour of the Appellant.

The second issue relates to the alibi raised by the Appellant. It was the contention of learned counsel Mrs. Ufot, that the alibi which details were given by the Appellant in his very first opportunity in his statement to the Police Exhibit 6 was found by the trial court not to have been investigated by the prosecution and submitted that the finding was itself fatal to the case of the prosecutions. Reliance was placed once more on Onuchukwu v. The State (supra). Learned counsel conceded the principle as restated in Aiguoregfflan v. The State (2004) 3 NWLR (Part 860) 367 that the non investigation of an alibi will not be prejudicial to the case of the prosecution if there is strong evidence implicating the accused person. She submitted however that given the material contradictions in the evidence of the prosecution witnesses, there is no credible evidence that fixes the Appellant at the scene of the crime. Counsel cited Onuchukwu v. The State (supra) and Dogo v. The State (2001) 3 NWLR (Part 699) 192 at 206 (2001) 2 SCM 39. She argued that in view of the plea by the Appellant that he was no where near the locus criminis at the material time and the evidence of the PW1, 2, 3, and 6 who identified the Appellant at the scene of crime, a court minded to do substantial justice cannot believe one version in preference to the other without investigation. Learned counsel urged us to be guided by previous decisions of this Court in Nwosu v. The State (supra) Onuchukwu v. The State (supra); Samuel Bozin v. The State (1985) 2 NWLR (Part 8) 465 at 471; Ozaki v. The State (1990) 1 NWLR (Part 124) 92 at 109. Counsel urged us to resolve this issue of alibi in favour of the Appellant.

With respect to the third issue for determination, learned counsel referred to Ahmed v. The State (2001) 18 NWLR (Part 746) 622 at 641-642, (2001) 1 SCM 33; Kada v. The State (1991) 8 NWLR (Part 208) 134 at 144 the Penal Code and three ingredients to sustain a charge for culpable homicide and submitted that proof of the death of the person alleged to be killed is mandatory. Learned counsel contended that the prosecution failed to establish the actual death of Alhaji Umaru Bameyi and which, she submitted is fatal to the case of the prosecution. Counsel urged in conclusion that the appeal be allowed.