Christopher Okosi & Anor V. The State (1989)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

On 29th July, 1983, at about 2200 hours, at Onitsha, one Raymond Okonkwo was in his patent medicine shop along New Cemetery Road, just closing for the day. He had his lights on and he heard a knock on his door. He never opened but spoke to whoever the visitor was.

The visitor asked for a medicine which he (Raymond Okonkwo, alias Boy-Boy and P.W.5 at the trial court) said he never had, but offered a substitute which the enquirer seemed to like. He then opened his door. It was the first appellant that came in with a rush. He ordered P. W.5 to lie down and not to get up. He requested him for money and on his replying that he had no money on him, he slapped him twice on the face, and warned him not to cry otherwise he would be shot.

The first appellant then ransacked his drawer and found N30.00 and asked if that was all his takings for the day. P. W.5 was in the process of answering when the second appellant walked in and produced a gun from his pocket and showed it to P. W.5, asking in the process if he knew what he held was. He then ordered P. W.5 to show him where the bulk of the money was or else he would be killed. This threat by the second appellant was immediately followed by first appellant’s hitting P.W.5 on the head with an iron rod and blood gushed out.

From this moment, P.W.5 obeyed the two assailants, for he seemed to be at their mercy. He was frightened and he quickly produced N50.00 he had in his pocket. They (appellants) then asked P.W.5 to open a door that appeared to lead to another room. He convinced them it was not his room but that a woman selling cigarettes was occupying it and that the entry into it was at the back.

The second appellant then held P.W.5 by his shirt collar and dragged him out, warning him that he would shoot him at the slightest alarm he raised. He was ordered to hail the occupier of the room, who obviously opened her door on recognizing the voice of P.W.5. She is Mrs. Ocheze Ikwueme (P. W.1). To her astonishment she saw P. W.5 was a captive and the second appellant pointing a gun at her. She raised an alarm but the appellants warned her to stop raising an alarm otherwise she and P.W.5 would be shot.

The first appellant then entered the room of P. W.1 and ransacked it. At this stage, Sylvester Offiah, a neighbour, perhaps due to the alarm raised or innocent venturing out, walked towards the scene and was tying a wrapper round his waist. The second appellant aimed and shot at him. Offiah fell and died on the spot after shouting “you have come to my house to shoot me” twice.

The two appellants there and then ran to a motorcycle and escaped into the darkness. They were both charged with the murder of Sylvester Offiah, tried and convicted. The Court of Appeal, sitting at Enugu, affirmed both the conviction and sentence passed on the two appellants, giving rise to the present appeal.

The two appellants filed separate Notices of Appeal. But much as the two notices contained various grounds of appeal which in many cases are not overlapping, the issues canvassed in the briefs could be summarized as follows:

1. Whether the identification of the appellants by P. W.5 was convincing, in view of the fact that the incident took place at night and in the absence of cogent evidence of there being light in the two rooms.
2. Whether the identification parade by the police was fixed and thus improper and lead to injustice.
3. Whether P.W.5 was an accomplice and as such his uncorroborated evidence ought to be received with caution by the trial Judge warning himself of the danger of relying on such evidence.
4. Whether in respect of the first appellant the alibi put up by him was properly assessed and acted upon.
5. Whether the trial Judge by asking some questions unwittingly descended into the arena and thus a miscarriage of justice was occasioned which the Court of Appeal failed to rectify.
6. Whether upon all the evidence before the trial court, the Court of Appeal was right in upholding the conviction and sentence passed on the appellants.

There was, however, another issue that arose from the grounds and the issues summarized above, to wit:

Whether the first appellant was guilty of murder when all he went out to do was to commit the offence of robbery which was in fact committed and it was after this completion of the offence of robbery that the second appellant on his own shot at and killed the deceased.

Oral argument were proffered by Chief N. N. Anah and Mrs. Ajayi-Obe, of counsel, for the first and second appellants respectively, to highlight their briefs. The emphasis on behalf of the first appellant centered on the last issue summarized above.

The issue of identification of the appellants is not as complicated as it was made to look in the grounds of appeal. There was evidence of light in the two rooms where the robbery took place. P. W.5 and P. W.1 saw the two persons, that is, the appellants. Each identified the second appellant as the person with the gun and the first appellant as the one ransacking for money in the two rooms. Each identified by evidence in court the first appellant on each occasion in each room as the first to enter. By the time identification parade was conducted at the police station, P. W.5 had no difficulty in identifying the two appellants.

There was never a suggestion at the trial court that the police fixed any identification; even if that was suggested, the onus of proving such a blatant disregard for truth and justice would be on the appellants and this onus was never discharged. I have nothing to fault in the decision of the Court of Appeal in upholding the finding of the trial court on this issue.