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.

On his part, Joe A. Abrahams, learned Attorney-General of Kogi State proffered the following arguments. With respect to whether there were such material contradictions in the evidence of the prosecution which made it unsafe upon which the learned Attorney-General submitted that it is not all contradictions and inconsistencies that are capable of vitiating the case for the prosecution. He relied on Ejeka v. The State (2003) 4 SCJ 161 at 168 (2003) 6 SCM 1. On the distinction between a contradiction and a discrepancy the learned Attorney-General referred to Agbo v. The State (2006) 6 NWLR (Part 977) 545 at 564, (2006) 2 SCM 1 and submitted that what the Appellant highlighted as material contradictions were, at best, mere discrepancies which do not relate to the material ingredients of the offence charged. He relied on Garko v. The State (2006) 6 NWLR (Part 977) 524; Agbo v. The State (supra) at 563-564, Igabele v. The State (2006) 6 NWLR (Part 975) 100 at 130-131, 135-136 (2006) 3 SCM 143; Sele v. The State (1993) 1 SCNJ 15 at 22-23; Dagaya v. The State (2006) 2 SCM 33, (2006) 1 SCNJ. With respect to the complaint by the Appellant about the prosecution’s failure to call certain named persons and the effect of such a failure on the prosecution’s case, the learned Attorney-General submitted that there was no rule of law which imposes an obligation to call a host of witnesses, contending that the prosecution has the discretion to call only such number of material witnesses to prove its case. In support of this submission, the learned Attorney-General relied on Ugwumba v. The state (1993) 6 SCNJ 217 at 225, Hausa v. The State (1994) 7-8 SCNJ 144; Udo v. The State (2006) 15 NWLR (Part 1001) 179 at 193; Garko v. The State (supra).

On the issue of the alibi raised by the Appellant, it was the contention of the learned Attorney-General that the trial court duly considered and rightly rejected the alibi. According to him, where the alibi raised is by its nature incapable of being investigated, it will be unnecessary to

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investigate it. He relied on Ukwenyi v. The State (1989) 7 SCNJ 34 at 43. It was a further submission of the learned Attorney-General that where the evidence of the prosecution witnesses has fixed the accused person to the scene of crime, any alibi raised by him is thereby logically demolished. For this submission he relied on Ebri v. The State (2004) 5 SCNJ 216 at 227, (2004) 5 SCM 48; Hausa v. The State (1994) 7-8 SCNJ 144; Njovens v. The State (1993) A.C.L.R. 244 at 261 or (1973) 5 SC 12; Balogun v. Attorney-General Ogun State (2002).

With respect to the 3rd issue of whether the prosecution proved the death of Alhaji Umaru Bameji, it was the submission of the learned Attorney-General that death of the victim of a crime may be proved by circumstantial evidence if it leads irresistibly to the conclusion that he is dead. He relied on Egbohonome v. The State (supra); Ehot v. The State (supra) and Musa v. The State (1986) 3 NWLR (Part 30) 536 at 542-543. The learned Attorney-General argued that from the evidence of the PW1, 2, 3 and 6 the irresistible conclusion is that Alhaji Umaru Bameyi is dead. He urged in conclusion that the appeal be dismissed.

In the Appellant’s Reply Brief Mrs. Dorothy Ufot proffered arguments in response to the Respondent’s issues 1 and 3. It was the contention that the starting point in the inquiry should be the unequivocal proof that the alleged victim of the crime Alhaji Umaru Bameyi was caused by the Appellant and others at large without first the establishment that he is actually dead. Learned counsel pointed out that the PW6 is the star and only witness to the actual killing by drowning of the victim Alhaji Umaru Bameyi, beheading him and his remains thrown into the River Niger. She submitted however that his testimony on which the conviction was mainly based is so rife with material contradictions that it is manifestly unreliable and untruthful requiring great caution before basing the affirmation of the conviction thereon. She submitted again that the contradictions in the prosecution’s case were not merely minor inconsistencies and discrepancies but rather fundamental enough to create a reasonable doubt which should be resolved in favour of the Appellant. Learned counsel then embarked on another extensive re-evaluation of the case of the prosecution with respect to contradictions and finally urged that the appeal be allowed.

I have carefully considered the evidence on record, the judgment of the trial Court dated the 19th December 2002, the judgment of the Court of Appeal dated the 8th December 2005 and the address of counsel for the parties. Let me now deliberate on the three issues submitted to us for determination, starting with the third issue of whether the death of the victim of the alleged crime, Alhaji Umaru Bameyi is established.

As a starting point, let me take the liberty to commend counsel for both parties for their meticulous analysis of the facts and the useful legal submissions. They very ably carried out their duties as ministers in the temple of justice.

On the third issue of whether the prosecution established the death of Alhaji Umaru Bameyi, it is my respectful view that learned counsel for the Appellant, Mrs Ufot, should have spared herself, the Respondent’s counsel and the Court the time and space expended on it. It is an issue which ought not to have been raised at all, given the uncontroverted evidence on record.

The aspect of the evidence of the prosecution which is not contested by the Appellant is that on the 29/11/98, an Odogu market day, a group of persons armed with dangerous weapons such as guns, cutlasses, rods and sticks went to the house of the deceased and attacked him with these weapons apparently to inflict injuries and/or kill him. When they did not succeed in killing him at his house, they took him away with his hands tied at his back. None of the PW1, 2, and 3, knew the exact spot to which he was taken. The PW6 said he was drowned at the River Niger by the group of persons, beheaded and his remains thrown into the River Niger. The learned trial judge made a finding that Alhaji Umaru Bameyi is dead. The lower court accepted that finding. The PW6 was the only witness of the killing. Even without the evidence of the PW6, the evidence of the PW1, 2 and 3 that the group of persons who attacked him on the 29/11/98 with weapons took him away with his hand tied behind him and that he has since that day, not been seen again alive leads irresistibly to one and only conclusion that he was dead. It is therefore inconceivable for learned counsel for the Appellant to proffer the sustained argument that because there was no medical evidence certifying the death of Alhaji Umaru Bameyi the charge of culpable homicide has not been proved. The irresistible unequivocal and compelling evidence is that Alhaji Umaru Bameyi is dead, the absence of medical evidence of his death notwithstanding.

In Joseph Ogundipe & Ors v. The Queen 14 WACA 458 the Appellants were convicted of the murder of one Apalara whose body was not found. There was evidence accepted by the trial court that he was attacked at his house along Tapa Street in the night of the 3rd of January 1953 by the Appellants. There was evidence of human blood found from the place of attack to the foreshore. The absence of corpus delicti notwithstanding, the West African Court of Appeal confirmed the conviction. In Edim v. State (1972) 4 SC 160 at 162 the Supreme Court held thus:

“It is true that the body of the deceased has not been recovered. But it is settled that where there is positive evidence that the victim has died failure to recover his body need not frustrate conviction.”

And in Ayinde v. State (1972) 3 SC 153 at 158-159 the Supreme Court Per Coker JSC said:

“The law as regards the absence of a corpus delicti is that a court may still convict an

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accused person for murder even though the dead body cannot be found; provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed.”

The correct legal principle therefore is that the absence of a corpus delicti notwithstanding a person can still be convicted for murder if there is strong unequivocal and compelling evidence that the victim of the alleged crime is dead. This is the situation in this case. The result is that there is no basis for interfering with the concurrent findings of the two courts below about the death of Alhaji Umaru Bameyi.

Let me take the 2nd issue of the alibi raised by the Appellant. It is part of the contention of learned counsel for the Appellant that the trial court failed to adequately consider the alibi raised by the Appellant. That contention is not supported by the record. At pages 108-112 of the defence was examined in considerable details before it was rejected. At page 110 of the record, the trial court relying on the principle in Salami v. The State (1988) 3 NWLR (Part 85) on the need for particulars of an alibi considered the details of the alibi contained in Exhibit 6 and the evidence of the Appellant and DW1 under cross-examination that there are two Allah Villages in the are a and expressed the opinion that the Appellant failed to give sufficient particulars of the alibi raised.

The above notwithstanding, the trial court at page 111 held that the Police failed to investigate the alibi.

However, the court adopted the principle in Njovens v. The State (supra), the evidence of the PW6, PW2, PW3 and PW6 and Exhibits 1 and 1 A, Exhibit 2, Exhibit 3 and Exhibit 6 and concluded thus:

“Considering the evidence of these eye witnesses (PW1, PW2, PW3 andPW6) I am left in no doubt that they have properly identified the accused and other participants at the scene of crime and clearly linked them with the commission of the crime. Therefore the evidence of alibi put forward by the accused person has a big hole. It cannot hold water I consider the prosecution witnesses (PW1, PW2, PW3 and PW6) very credible witnesses.”

The Court below accepted this finding of the trial Court on the alibi raised in Exhibit 6. Can these concurrent findings on the alibi be faulted in view of the evidence on record? The settled principle of law is that it is not every failure of the Police to investigate an alibi raised by an accused person that is fatal to the case of the prosecution. In Patrick Njovens & Others v. The State (1973) 5 SC 12 at 47 this Court said of the principle.

“There is nothing extraordinary or exoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or att

empt to do so, there is inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and acceptable evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished…..” ( underlining mine)

In the earlier case of Hemyo Atam & Anor v. The State SC.632/66 decided on the 11/1/67 this court applying this same principle stated:

“Each of the Appellants made a statement under caution after his arrest setting upon alibi The Police Officer who took the statements was asked whether he had done anything to check their truth and said that he had not and it was submitted that for this reason justice had been denied to the appellants and there should at least have been a reasonable doubt as to their guilt There are occasion on which a failure to check on an alibi may casts a doubt on the credibility of the case for the prosecution, but in a case such as this where the Appellants were identified by three eve witnesses there was a straight case of credibility and we are not able to say that the judge’s finding of facts were unreasonable or cannot be supported having regard to the evidence.” (underlining mine)

In view of the principle in these cases it is my view that although there is no evidence of the investigation of the alibi set up by the Appellant, the trial court’s rejection of the plea in view of the eye witness accounts of the PW1, PW2, PW3 and PW6 cannot be faulted. The result is that I also resolve this issue against the Appellant.

This takes me to the last issue of whether the evidence of the prosecution is so replete with material contradictions as to render it unsafe to sustain the conviction of the Appellant. On this issue the learned trial judge considered the various aspects of the contradiction highlighted by learned counsel for the Appellant. The first was the contradiction between the evidence of the PW1 and PW2 as against that of the PW3. On this aspect of the contradiction the learned trial judge at page 107 of the record reasoned:

“On the issue of the evidence of PWl andPW2 contradicting that of the evidence of PW3, I do not see any contradiction there. By the time PW3 came out from AlhajiAbu Bameyi’s house to the deceased compound on hearing the noises of people PW1 and PW2 had already ran into hiding in the bush. That is why PW3 stated under-examination that those he saw at the deceased compound were the deceased, his wife and Itoduma people.”

The Appellant complained that by the above statement the trial court was only providing explanation for a contradiction and submitted that the duty of giving explanation for contradictions in the prosecution’s case is that of the prosecution witnesses and not that of the Court. I do not, with respect, agree with that opinion of learned counsel for the Appellant. In making the Statement, the Court

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was only demonstrating its proper evaluation of the evidence before it. The reasoning of the trial court was consistent with the scenario created at the scene in the wake of the attack. If on seeing the assailants’ approach the PW1 and PW2 ran away from the house of the deceased to hide in a nearby bush the PW3 would not see them on his arrival at the scene from the house Alhaji Abu Bameyi. While the PW1 and 2 would see him from where they were hiding. There was, therefore, no contradiction of any sort between the evidence of the PW1 and 2 on the one hand and that of the PW3 on the other. As a matter of fact the evidence highlighted as a major contradiction goes to lend more credence to the case of the prosecution.

The trial court also examined the contradictions as to the number of persons who attacked the deceased and the manner and dates of arrests and at page 108 concluded thus:

“In this case, I see no contradiction material enough to raise an eye brow in the evidence of the PW1, PW2, PW3, PW4andPW7.”

On this issue of contradictions the court below at page 182 of the record had this to say:-

“I am of the view that in the instant case, the learned trial judge had properly adverted its mind to the contradiction complained of and came to the right conclusion. I find no sufficient reasons to interfere with his findings which I uphold.”

I agree with the above view of the court below about the contradictions in the case of the prosecution. There is simply no basis for any interference on the issue of contradictions. The first issue of contradictions is therefore also resolved in favour of the Respondent.

In the light of the foregoing considerations I hold that the appeal is devoid of any merit and is accordingly dismissed. The judgment, conviction and sentence of the trial court and affirmed by the Court below is also hereby affirmed.

SC. 79/2007