Okere V. Igp (2021)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

On Sunday 3/12/2006 at about 7:00pm the Appellant with 4 other accused persons jointly tried and others at large attacked with matchet and a gun, the deceased, Elijah Okeeke Andrew, a pastor of the Apostolic Church, in his residence at Baa Lorre community in Khana Local Government Area of Rivers State, immediately he returned from church service, and inflicted several matchet cuts all over his body in the full glare of the deceased’s sister, Hannah Andrew (PW1), and the deceased’s daughter, Joy Andrew (PW2), leading to his instant death and carted away his corpse in a white bus. The deceased’s daughter, who wailed and fell on the deceased’s body also was given matchet cuts on her head, left and back side. The deceased’s decomposed body was later recovered on 7/12/2006 at Korogua village waterside in Oyigbo Local Government Area of Rivers State. The Appellant fled away from Baa-Lorre community and was subsequently arrested at Zone 6 Police Headquarters, Calabar, where he went to lodge a complaint against members of the deceased’s family.

The Appellant on the other hand denied the killing of the deceased and maintained that on 3/12/2006, while he attended an occasion at the residence of one Mr. Nicholas Emmanuel at Baa-Lorre community in Khana Local Government Area of Rivers State, a group of boys armed with a local pistol pointed at him, took him away but for the intervention of the Youth Leader of Baa-Lorre, Dr. Kinanu, he was released and escorted out of Kaa-Lorre community. He thereafter went to Okere in Khana Local Government Area and reported the incident to His Highness, Chief Nwige Gbarakoro, who counseled him to report the matter to the Bori Police Division, where he volunteered a statement. The Police at about 7:00pm asked him to bring money for them to go to Baa-Lorre to effect arrest but complained to them that he had no money on him. He consequently slept in Bori that night and in the morning while he returned home, he saw a crowd at Luebe community near his own community with his mother among them, who advised him not to go home because the boys were after him and had already burnt his house and those of others and damaged many properties. He later went to Zone 6, Calabar, and made a statement to the Police but on his way back from Calabar, the Police asked him to return, that there was a petition against him. Having returned, he was arrested, detained and charged to Court.

After the trial, the Appellant with the others charged were convicted and sentenced to death by hanging on 22/5/2014. Aggrieved, he appealed to the lower Court, which affirmed the judgment of the trial Court. He further appealed to this Honourable seeking for determination:

1. Whether the Court of Appeal was correct when their lordships held in their judgment that the Appellant’s alibi is a mere fallacy?
2. Whether P.W.1 and P.W.2, the alleged eye witnesses gave convincing and credible evidence to predicate the conviction of the Appellant?
3. Whether the prosecution by the available evidence proved the guilt of the Appellant beyond reasonable doubt?

The Respondent on the other hand couched three issues for determination thus:

1. Whether the learned Justices of the Court of Appeal were right to hold that in the circumstances of this case, the defence of alibi does not avail the Appellant?
2. Whether the learned Justices of the Court of Appeal were right in upholding the decision of the trial Court that there were no material contradictions in the eye witness accounts of the PW1 and PW2 such that the Prosecution could not be said to have proved the offence of murder against the Appellant?

3.Whether the learned Justices of the Court of Appeal were right when they affirmed the decision of the trial Court that the evidence adduced by the Prosecution sufficiently proved the guilt of the Appellant beyond reasonable doubt?

While I adopt the Appellant’s issue one, issues two and three shall be considered together and couched “Whether by the contradictions in the evidence of PW1 and PW2, the Respondent was able to prove the guilt of the Appellant beyond reasonable doubt?”

ISSUE ONE:

Whether the Court of Appeal was correct when their lordships held in their judgment that the Appellant’s alibi is a mere fallacy?

The submission of the learned Counsel to the Appellant is that the Appellant led unchallenged evidence that he made a statement at the Bori Police Station and Zone 6 of the Nigeria Police Force, Calabar; and could not have been at the Bori Police Station and Baa Lorre at the same time. Hence, it was impossible to place the Appellant at the scene of crime at the relevant time. He relied on the meaning of alibi defined in DURU V. STATE (2017) ALL FWLR (PT.893) AT 1278. It was argued also that the Court ought to look at the statement of the Appellant to the Police at the earliest opportunity as decided in OKORIE V. STATE (2018) 11 NWLR (PT.1629) AT 27. Thus, that the lower Court was not on a strong wicket when it held that the Appellant’s alibi was a fallacy. He therefore urged that this issue be resolved in favour of the Appellant.

The Respondent however settled that the Appellant’s alibi did not furnish sufficient particulars worthy of investigation by the Police. He relied on AGU V. STATE (2017) 10 NWLR (PT. 1573) AT 200. That the attendance of a wedding ceremony as contained at Exhibit 9 in pages 37-38 did not mention or connect Baa Lorre community. The Appellant fixing himself to Bori Police Station is a belated contrivance since it was not made on 3/12/2006 but at the trial.

Furthermore, that where an accused is fixed to the crime by an eye witness, his alibi is automatically crushed. Reliance was placed on UDE V. STATE (2016) 14 NWLR (PT. 1531) AT 153-154, 162-164, STATE V. EKANEM (2017) 4 NWLR (PT.1554) AT 97. He prayed this Court to resolve this issue against the Appellant.

It is the Appellant’s contention that he put up the defence of alibi at the earliest and possible opportunity he had when he went to the Bori Police station to report the incident of the murder of the deceased as he heard from the community. In his confessional statement, Exhibit 9, contained at pages 37-38, dated 17/1/2007, he narrated and explained to the Police at page 37 of the record that:

“On 3/Dec/2006, I was invited to Mr. Nicolas Emmanuel (sic) compound for an occasion when some group of people came in and said that they should release me to them… that they should go and kill me and other people, and those boys are… they point (sic) me with gun, a local made pistol and Nicolas Emmanuel and Doctor Kinanu youth leader of Ka-Loore came and rescued me from them and sent me to the junction to see where they cut one Tambari Aziaka and from… to report to the Highness at Okwere, Chief Nwigo Gbarakoro for what has happened in the village by 5pm on 3/12/07… ”