Christian Okereke V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 27th of February 2012 the High court of Ebonyi State sitting at Abakaliki, per H. A. Njoku J. rendered judgment in charge No. HAB/7C/2008, convicted the appellant of murder and sentenced him to death by hanging, following his charge, arraignment and full trial for the murder of one Mrs. Elizabeth Aja.

Dissatisfied with this judgment, the appellant on the 7th of March 2012 commenced this appeal No. CA/E/159/2012 by filing a notice of appeal containing 9 grounds of appeal.

Both parties to this appeal have filed, exchanged and adopted their respective briefs of argument in this appeal. The briefs of arguments filed herein include the appellant’s brief of argument, the respondent’s brief of argument and the appellant’s reply brief.

The appellant in his brief of argument raised the following issues for determination:

1. Was the learned trial Judge correct when he stated flatly that the PW1 did not give any evidence of the “alleged” 24 feet? (Ground 1 of the Appeal).
2. Was the learned Trial Judge correct or in order when he described the evidence of DW2 as being “defence invented”? (Grounds 4 and 6 of the Appeal).
3. If the answers to the questions above are in the negative, did each of the situations portrayed the questions, not occasion a miscarriage of justice?(sic)
4. On the totality of the evidence led at the trial, was there no lingering doubt that it was not the accused person who killed the deceased woman? (Grounds 2, 3, 5, 7, 8 and 9 of the Appeal).

The respondent in its brief of argument adopted the appellants issues Nos. 1, 2 and 3 and framed its own issue No. 4 thus – “whether in view of the evidence before the lower court, was the learned trial judge justified in convicting the appellant for the murder of the deceased.”

Pending the hearing of the substantive appeal, the appellant challenged the correctness and accuracy of the record of appeal and applied for the amendment of the record of this appeal on the ground that what the trial court stated in its judgment as what PW1 said is different from what the witness actually said in his testimony in respect of the distance between the place the gun was shut from and where the deceased was when she was shut. The appellant had on the 10th May 2012 filed. “AFFIDAVIT TO CORRECT ERRORS OF OMISSION IN THE RECORD OF APPEAL” deposed to by Mrs. Clara N. Nwachukwu, Learned Counsel in the law office of Learned Senior Advocate for the appellant. Thereafter the appellant also filed a motion on notice praying for:

1. An Order amending the Record of Appeal in Order to reflect accurately the evidence of PW1 as to the distance from which the alleged fatal shot was fired.
2. Leave of the Honourable court to use and rely on the Affidavit of Mrs. Clara N. Nwachukwu, particularly paragraphs 7, 8 and 9 thereof already filed in this court as a true narration of events and in place of the corrected version for purposes of this appeal.
3. And such further Order or other Orders as to the Honourable court may deem fit.

The motion is supported by an affidavit also deposed to by the same Mrs. Clara N. Nwachukwu. The application relied mainly on the said affidavit of 10th may 2012 to correct errors of omission.

The said affidavit of correction of errors of omission in the record of appeal was served on the Trial Judge and the Registrar of the trial court. The Registrar of the trial court, in response thereto deposed to an affidavit headed “AFFIDAVIT OF MR. ALEXANDER EZE, REGISTRAR HIGH COURT, NO 1, EZZANGBO, OHAUKWU JUDICIAL DIVISION” The certified true copy of the hand written notes of the trial judge was annexed to the said affidavit.

The ground upon which the amendment of the record of appeal is sought is stated in paragraphs 6, 7 and 8 of the affidavit to correct errors of omission in the record of appeal. Therein the deponent stated –

6. That it is not entirely correct as the Trial court recorded on page 227 lines 4-82 of the Record that the PW1 only said that “the distance between where we were from the point that Christian Okereke was standing and shot my brother’s wife is about 18 feet”.

That the true testimony of PW1 is that the distance from where the shot was fired to where the deceased was standing was the equivalent of the distance from where he stood in the witness box to the wall opposite the court hall.

8. That it was the court, with the agreement of both sides that ascribed 18 feet to the distance described by the witness, as its estimate of the distance.

It is not the accuracy of the entire record of appeal that was challenged by the appellant. Paragraph 6 of the said affidavit to correct errors of omission state that the inaccurate recording is at page 227 lines 4-82 of the record of appeal. This is the part of the record of appeal sought to be amended. Page 227 of the record of appeal contains the judgment of the trial court and not the testimony of PW1. In the part of the judgment in this page the trial court expressed its opinion as to what PW1 said was the distance between where the deceased, Mrs. Elizabeth Aja was shot and the point the accused stood and shot her and decided the question of who, as between PW1 and DW1 testified that the distance was 24 feet. The trial court held that PW1 testified that it was 18 feet and that DW1 testified that the distance was 24 feet. The exact wordings of the part of the judgment at page 227 are as follows –

“Before I proceed further, I wish to state with the greatest respect to the Learned silk for the accused person, that the PW1 never gave any evidence of distance of the alleged 24 feet. What the PW1 stated in his evidence before this court on 23rd April, 2009 was as follows:-

“the distance between where we were from the point that Christian Okereke was standing and shot my brother’s wife is about 18 feet”