EMMANUEL OCHIBA V. THE STATE
(2010)LCN/3905(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of June, 2010
CA/J/76C/2006
RATIO
WHETHER IT IS A DUTY OF A TRIAL COURT TO DECIDE IF THERE WERE CONTRADICTIONS
Contradiction in evidence must go to an issue of fact which must be resolved before Judgment is delivered, and so it is the duty of the trial court to decide if there were contradictions and if there were, take it into consideration in the evaluation of the evidence of the witness/s. PER BODE RHODES-VIVOUR, J.C.A.
EFFECT OF NOT CROSS EXAMINING A WITNESS ON A CRUCIAL AND MATERIAL POINT
Where a witness is not cross examined on a crucial and material point, the only conclusion is that the adverse party who ought to have cross examined the witness accepts the evidence of the witness as true and correct. See: Okosi V. State 1989 1 N.W.L.R. Pt. 100 p. 642. PER BODE RHODES-VIVOUR, J.C.A.
CIRCUMSTANCES UNDER WHICH A MEDICAL EVIDENCE ON THE CAUSE OF DEATH OF THE DECEASED IS IMPORTANT
In this case no medical report of the cause of death, and the Murder weapon were tendered. Medical evidence on the cause of death is important to establish the caused of death. Where for instance there is no eye witness to the act of killing, the nature of injury inflicted on the deceased, Medical evidence of the cause of death would be vital for the case of the prosecution. See: Bukuri V. State 1965 N.M.L.R. p. 162 Onyenankanga V. State 1964 N.M.L.R. p. 34 In this case the deceased was shot at close range by the Appellant. He died from a gunshot wound. Where the cause of death is clear, production of the Murder weapon though desirable is no longer necessary. PER BODE RHODES-VIVOUR, J.C.A.
HOW THE GUILT OF AN ACCUSED WILL BE PROVED IN A MURDER CHARGE WHERE THERE IS A POSITIVE EVIDENCE THAT THE DECEASED NAMED IN THE CHARGE DIED BUT, THE BODY WAS NOT FOUND OR BURIED
Where there is positive evidence that the deceased named in the charge died but, the body was not found or buried and so no Post Mortem examination conducted the accused (Appellant) can be convicted on his confessional statement, circumstantial evidence, or other evidence which conclusively points to the fact that the accused (Appellant) caused the death of the deceased named in the charge. See: Ogundipe V. Queen 1954 14 W.A, C.A. p. 458 Ukorah Vs State 1977 4 SC p.167 Edim V. State 1972 4 SC p. 160 PER BODE RHODES-VIVOUR, J.C.A.
WHETHER A TRIAL COURT CAN CONVICT ON THE EVIDENCE OF A SINGLE WITNESS
A trial court can convict on the evidence of a single witness provided the evidence proves the case against the accused person and the court accepts it. It would thus be safe to convict on that testimony. Exceptions to convicting on the testimony of a single witness are in cases where the offence needs corroboration. E. g. Rape, Treason. PER BODE RHODES-VIVOUR, J.C.A.
WHETHER ASSESSMENT OF THE CREDIBILITY AND ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE IS THE FUNCTION OF THE TRIAL COURT
It has been said in a plethora of cases that the assessment of the credibility and ascription of probative value to the evidence is the function of the trial court. This is so because that court had the advantage of seeing and watching the demeanour of the witnesses; See: Usanga V. Usanga 1982 5 SC p. 103 Sanusi V. Makinde 1994 5 NWLR. Pt. 343 P. 230 PER BODE RHODES-VIVOUR, J.C.A.
JUSTICES
ZAINAB A. BULKACHUWA Justice of The Court of Appeal of Nigeria
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
EMMANUEL OCHIBA Appellant(s)
AND
THE STATE Respondent(s)
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
State V, Ozaki 1986 5 N.W.L.R, Pt. 40 P. 258
In discharging that duty submissions in the Appellants brief were on:
(a) Whether the identity of the Appellant was established beyond reasonable doubt.
(b) Whether there were contradictions in the case of the prosecution.
To prove the offence of culpable homicide under section 221 (b) of the Penal Code the Prosecution must establish that:
(a) A human being died;
(b) The death was caused by the accused person,
(c) The act of the accused person which caused the death of the deceased was done with the intention of causing death; or with the intention of causing such other bodily injury as;
(i) the accused knew or had reason to know that death would be the probable and not only likely consequence of his act; or
(ii) the accused knew or had reason to know that death would be the probably and not only the likely consequence of any bodily injury which the net was intended to cause.
Section 138 (i) of the Evidence Act requires proof in a criminal case to be beyond reasonable doubt. It states that:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
In Adio V. State 1986 2 N.S.C.C. p. 815 The Supreme Court explained how a case is proved beyond reasonable doubt. It said that a case can be proved by direct oral evidence. If the testimonies of witnesses who saw and heard are believed, there will be proof beyond reasonable doubt. Circumstantial evidence can prove a case beyond reasonable doubt.”
See: also Lori V. State 1980 8-11 SC p. 81
Obue V. State 1976 2 SC p. 9
Asanya V. State 1991 3 N.W.L.R. Pt. 180 p. 422
Now, to the issues:
1. Was the identity of the Appellant establish beyond reasonable doubt.
Learned counsel for the Appellant observed that the only evidence that the Appellant shot the deceased was the evidence of P.W.1, contending that the other people who were around ought to have been called to give evidence. He submitted that the evidence of P.W. 1 ought to have been taken with caution moreso as P.W.1 was in a panicky state. Relying on R. V. Turnbull 1976 3 ALL E.R p. 549.
State V. Nnolim 1994 6 SCNJ p. 48.
He submitted that the case against the Appellant was not proved beyond reasonable doubt. In further submissions he observed that the Identification Parade was pre-arranged as none of the other suspects arrested with the accused were paraded along with him, contending that it was unsafe to rely on the evidence of P.W.1.
Opposing, learned counsel for the Respondent observed that there was no suggestion by the Appellant that the observation of P.W.1 was impaired or obstructed by distance, weather condition or even moving traffic, further observing that during cross examination P.W.1.’s evidence was not shaken, destroyed or discredited by the defence. Relying on
R V. Turnbull 1976 3 ALL E.R. n. 549
N. Mbenu and Ors. V, State 1988 7 SCMJ (Pt. 11) p. 221.
He submitted that the visual evidence of identification by P.W.1, not discredited is good in a murder trial. Identification of the accused person is fundamental in a criminal trial. It simply means the fact/s or, and circumstances by which a witness/es can say convincingly that the accused person committed the offence. eg. DNA, finger prints, Handwriting, palm impressions, identification parade and voice identification, Photographs, are all vital clues. Also the recollection of the features of the accused by the witness is also of vital importance.
The learned trial Judge resolved the issue of identity (who shot the deceased) thus:
“The law requires the nexus between the act and the death to be established beyond reasonable doubt P.W.1 identified the accused by various parameters i.e. rank, dressing and actions.
This piece of evidence was also not contradicted nor impeached under cross examination. The clear and positive identification of the accused person is only by a lone witness, i.e. P.W.1”
On what the leaned trial Judge observed:
“…Does the court believe P.W. 1? P.W. 1 is a legal Practitioner as observed above, he was confident and very sure, in the box. He was very specific and direct on the events of that day. I therefore find him a truthful witness and should therefore be believed I am satisfied with his testimony being an eye witness account of how the said Godwin Momoh met his death on that day. There is therefore a nexus between the act of the accused and the death of the deceased.”
On the identity of the Appellant, P.W. 1 said on Oath, in evidence in chief:
“…I saw the accused person. He had a small bottle of Hot drink and his shirt was not tucked in but left loose…… The accused person fired and the next thing I heard was a cry from the young boy who said oh, I am gone………”
I am gone, oh I am gone”
In cross examination P.W.1 said that he knew the accused person at the scene of crime. He said:
I observed him but before the incident I never knew him”
In R. V. Turnbull 1976 3 ALL E. R. p. 549
Lord Widgery, C. J. England (as he then was) gave a guide when the identity of the accused person appears to be in issue. His Lordship said:
“…The Jury should examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the accused under observation. At what distance? In what light? Was the observation impeded in anyway as for example bypassing traffic or press of people? How often. If only occasionally, had he any special reason for remembering the accused? How much lime elapsed between the original observation and the subsequent identification by the Police?”
My Lords, P.W.I had a good view of the Appellant at close range. First, when the Appellant came out of the Hotel drinking from a Bottle of “Hot” drink. Secondly when he shot the deceased who at the time was knelling beside him (P.W.1). All of this occurred in bright fight (noon) and at very close distance. At no time during trial did learned counsel for the Appellant suggest that the observation of P.W. 1 was impaired by inclement weather or distance. It is only when the identity of the accused person (Appellant) is really in issue that an identification parade becomes necessary.
Alabi V. State 1993 7 N.W.L.R. Pt. 307 p. 511
Orimoloye V. State 1984 10 SC p. 138.
Anyanwu V. State 1986 5 N.W.L.R. Pt. 43 p. 612.
A review of the evidence led, particularly excerpts from the Judgment referred to in this Judgment confirm that the learned trial Judge was right to hold that the Appellant shot and killed the deceased on the 12th of September, 2001.
2. Whether there were any contradictions in the case of the prosecution.
Learned counsel for the Appellant observed that in one breath P.W.3 said that the Appellant did not sign for a gun but in another breath said P.W.3 was given a rifle.
He observed that this is an inconsistent statement which needs corroboration. On the Identification Parade, learned counsel observed that it was pre-arranged as none of the suspects arrested with the Appellant were paraded along with him. Reference was made to State V. Musa Danjuma 1997 5 SCNJ p.126. Concluding he submitted that these inconsistencies should have created a doubt in the mind of the learned trial Judge, a doubt which ought to have been resolved in favour of the Appellant.
Learned counsel for the Respondent argued that there was no form of contradiction in the case of the prosecution. He observed that even the Appellant in his statement – Exhibit I maintained that he was issued a LAR RIFFLE with live ammunition on the fateful day, contending that there is no dispute as to whether a gun was used.
He submitted that from the testimony of P.W.1, P.W. 3 and Exhibit 1 there was a gun and live ammunition and so no contradiction in the evidence of the prosecution. Reliance was placed on Garko V. State 2006 6 N.W.L.R. Pt, 977 p. 524 Oduneye V. Sate 2001 1 SCNJ p. 25
Trials usually commence months after the offence for which the accused person is charged was committed. There is the real likelihood that the memories of the witnesses will have faded to some extent, recollection of events by witnesses could contain or are likely to contain minor differences in details. Then it can be said that there are discrepancies in the testimony, this is allowed. But a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are by themselves inconsistent.
See: Gabriel V. State 1989 5 N.W.L.R. Pt. 122 p. 460.
Contradiction in evidence must go to an issue of fact which must be resolved before Judgment is delivered, and so it is the duty of the trial court to decide if there were contradictions and if there were, take it into consideration in the evaluation of the evidence of the witness/s.
In this case there was nothing material in whether the Appellant was issued a Mark IV Riffle or a Lars Riffle. The testimony of P.W.1 the only eye witness is that the Appellant went to the Vehicle collected a riffle which according to him was a Mark IV, corked it and shot the deceased. The important fact is that the deceased was killed by a Riffle. It is immaterial whether he was killed with a Mark IV or Lars or any other Riffle. 1 am satisfied that there is no contradiction in the testimony of the prosecution witnesses.
Learned counsel for the Appellant made heavy weather that the Identification Parade conducted by the Police was pre-arranged. Learned counsel for the Respondent did not bother to respond, and quite rightly so.
On the Identification Parade. The learned trial Judge said:
“I find that since the Identification Parade is not in evidence, the identification relied upon by the court is the one P.W.1 said he observed the accused at the scene and also identified him in court. The Identification Parade was not necessary in this case. (See page 66 Record of Appeal.)”
Three photographs of the Identification Parade and Forms D 49 and D 50 were tendered for identification purposes only.
The Evidence Act Cap 122 Laws of the Federation makes no provision for a document to be tendered for Identification purposes.
Documents to be relied on in a trial by the Judge can only be tendered as Exhibits.
Documents marked for identification purposes means exactly what it ways. No probative value is ascribed to such documents. They are worthless in a trial. Courts deal and act on Exhibits. The learned trial Judge was right not to consider the results of the Identification Parade since it was not in evidence.
When the Appellant was called to give evidence he simply identified his statement to the Police made on the 13th of September 2001, adopted it and said:
“I did not send anybody to the father of the deceased to plead on my behalf.”
In cross examination he said inter-alia.
“….. On our way back we met the corpse of the deceased on the ground. The people came there shouted that we killed the man…..”
The statement of the Appellant and his testimony in cross examination is a complete denial. The statement was evasive at most times. The learned trial Judge did not believed it. I too do not believe the Appellant in the light of all that I have been saying.
In Murder trials the trial Judge is expected to consider defences not considered by the defence and any other defence that might be helpful or available to the Appellant, (accused person). The learned trial Judge considered, Provocation, Insanity, intoxication and accident and dismissed all of them concluding that the Appellant intended the natural consequences of his act. I am in entire agreement with that conclusion.
Before I conclude this Judgment I shall further show the guilt of the Appellant and comment on the absence of some documents, exhibits required at times for a successful Murder trial by the State.
In evidence in chief P.W.2. (The father of the deceased) said:
“….The Police did orderly room trial. I was there. They questioned me and the accused cross examined me…. The accused was asked if he knew me and he said no. Then the O.C. Homicide said this is the father of the boy you killed. He knelt down to beg that i should forgive him. I said I have forgiven him and he asked me to put it in writing which I refused.”
I shall now reproduce the entire cross examination:
“Nobody came to my house the following day. On that day there were movements, there was no problem. The prior crisis was at Nasarawa. I do not know Obi Eze as a friend to my son.”
That was all that was said in cross examination. A crucial and material point arising from the evidence of P.W. 2 is that the Appellant knelt down to beg P.W. 2 to forgive him for killing his son. The act of the Appellant begging the father of the deceased (P.W. 2) is conclusive evidence of guilt.
Where a witness is not cross examined on a crucial and material point, the only conclusion is that the adverse party who ought to have cross examined the witness accepts the evidence of the witness as true and correct.
See: Okosi V. State 1989 1 N.W.L.R. Pt. 100 p. 642.
Learned counsel for the Appellant ought to have cross examined P.W.2 on the issue of the Appellant begging for forgiveness or at least show that he does not accept the evidence as true.,- In the absence of cross examination I am firmly of the view that begging became necessary because the Appellant killed P.W.2’s son.
In this case no medical report of the cause of death, and the Murder weapon were tendered. Medical evidence on the cause of death is important to establish the caused of death. Where for instance there is no eye witness to the act of killing, the nature of injury inflicted on the deceased, Medical evidence of the cause of death would be vital for the case of the prosecution.
See: Bukuri V. State 1965 N.M.L.R. p. 162
Onyenankanga V. State 1964 N.M.L.R. p. 34
Where cause of death is clear Medical evidence is unnecessary. Medical evidence is thus not a sine qua non in homicide cases. In this case the deceased was shot at close range by the Appellant. He died from a gunshot wound.
Where the cause of death is clear, production of the Murder weapon though desirable is no longer necessary.
In this case the deceased was buried without an autopsy conducted on the dead body.
Failure to identify the body to the Doctor who performed the autopsy (Post Mortem examination) is a fatal omission in homicide cases. Such evidence is vital for obvious reasons. The accused may very well be convicted for killing someone he never killed. The body examined by the Doctor must be the deceased named in the charge.
Where the dead body was not found or had been buried and so no Post Mortem examination conducted as in this case the prosecution has a duly to identify the deceased in the charge us the person killed by the Appellant.
Where there is positive evidence that the deceased named in the charge died but, the body was not found or buried and so no Post Mortem examination conducted the accused (Appellant) can be convicted on his confessional statement, circumstantial evidence, or other evidence which conclusively points to the fact that the accused (Appellant) caused the death of the deceased named in the charge.
See: Ogundipe V. Queen 1954 14 W.A, C.A. p. 458
Ukorah Vs State 1977 4 SC p.167
Edim V. State 1972 4 SC p. 160
The deceased named in the charge is Godwin Momoh. He was shot while kneeling beside his friend P.W. 1 (an eye witness).
P.W. 2 is Peter Momoh the father of Godwin Momoh (deceased) He carried his dead son from the pool of blood and buried his son on the orders of the Police because the Mortuary was full as a result of the crisis The evidence of P.W.1 and P.W. 2 particularly the above is conclusive that the person shot by the Appellant is the same person named in the charge – Godwin Momoh. There is thus positive evidence that Godwin Momoh is dead and he is the person named in the charge Finally on my comments. A trial court can convict on the evidence of a single witness provided the evidence proves the case against the accused person and the court accepts it. It would thus be safe to convict on that testimony. Exceptions to convicting on the testimony of a single witness are in cases where the offence needs corroboration. E. g. Rape, Treason. It has been said in a plethora of cases that the assessment of the credibility and ascription of probative value to the evidence is the function of the trial court. This is so because that court had the advantage of seeing and watching the demeanour of the witnesses;
See: Usanga V. Usanga 1982 5 SC p. 103
Sanusi V. Makinde 1994 5 NWLR. Pt. 343 P. 230
A Judge sitting on appeal should be very reluctant to differ from a trial Judge on a finding of fact expect those findings are perverse. I am satisfied with the findings of the learned trial Judge.
In this case the learned trial Judge believed P.W.1 that the Appellant shot the deceased at close range. I affirm the Judgment and dismiss the appeal.
ZAINAB A. BULKACHUWA, J.C.A.: I have read before now, the judgment just delivered by my learned brother Rhodes-Vivour J.C.A.
I agree entirely with the reasoning and conclusions reached and adopt it as mine in dismissing the appeal.
ABUBAKAR DATTI YAHAYA, J.C.A;I have had the privilege of reading in advance, the judgment of my learned brother Rhodes-Vivour J.C.A just delivered, and I agree.
The evidence in chief or PW2 was vital and had raised a very crucial point. He said that the O.C. Homicide, had introduced him as the father of the boy ‘you’ (the appellant) had killed. He there and then, knelt down to ask for forgiveness from PW2 as the father. In my view, this evidence had strongly raised the issue that the appellant had admitted killing the deceased. I therefore expect that if the evidence in chief of PW2 was not correct or true, that point would be taken under cross-examination. The failure to cross-examine PW2 on the crucial and material aspect of his evidence, is clearly a tacit acceptance of the truth of the evidence. OFORLATE VS THE STATE (2000) 12 NWLR (Pt 681) 415 at 436. Once that position was reached, the appellant was as good as being sunk, as it had clearly and firmly established his guilt.
For the fuller reasons stated in the lead judgment, I also hold that the appeal is without any merit and it fails. I also dismiss it and affirm the judgment of the lower court.
Appearances
R. N. OkonkwoFor Appellant
AND
Mrs. O. D. Milahan Assistant Director of Public Prosecutions
Plateau State
With her L. Yunusa, State
Counsel, Plateau State Ministry of Justice.For Respondent
