Okere V. Igp (2021)

LAWGLOBAL HUB Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.S.C.

This appeal No. SC.839/2018 was commenced on 23 April, 2018 when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal delivered on 16 March 2018 in appeal No. CA/PH/21CR/2015 concurring with and affirming the judgment of the High Court of Rivers State sitting at Port Harcourt delivered on 29 May, 2014 in criminal case No. BHC/40CR/2007 convicting the appellant of the offences of conspiracy to commit murder and murder and sentencing him to death by hanging on the neck.

The notice of this appeal contains three grounds for the appeal. Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.

The appellant’s brief raised three issues for determination as follows:

1. Whether the Court of Appeal was correct when their lordships held in their judgment that the appellant’s alibi does not avail the appellant? (Ground 3 of the notice of appeal).

​2. Whether PW1 and PW2 the alleged eye witnesses gave convincing and credible evidence to predicate the conviction of the appellant? (Ground 2 of the notice of the appeal).

3. Whether the prosecution by the available evidence proved the guilt of the appellant beyond reasonable doubt? (Grounds 1 and 4 of the notice of appeal).

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The respondent’s brief also raised three issues for determination as follows:

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? (Distilled from ground 3 of the notice of appeal)
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 eyewitness accounts of the PW1 and PW2 such that the prosecution could not be said to have proved the offence of murder against the appellant? (Distilled from grounds 1 and 4 of the notice of appeal).
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? (Distilled from grounds 1 and 4 of the notice of appeal).

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

I will determine all the issues together as they all deal with the evidential basis for the conviction of the appellant.

I have carefully read and considered all the arguments in the respective briefs on these issues.

Before I delve into the determination of the merit of the above issues, let me state that there is no ground of this appeal complaining against the decision of the Court of Appeal concurring with the decision of the trial Court that the contradictions which the appellant contend exists between the testimonies of PW1 and PW2 were not material as they did not impact on the substance and ingredients of the offences of which the appellant was convicted. By not appealing against this concurring decision, the appellant accepted it as correct, binding and conclusive. It is trite law that a finding, holding or decision not appealed against is accepted by the parties to the case in which it is made as correct and conclusive on what it decides and is binding upon them. See Iyoho v. Effiong (2007) All FWLR (Pt. 374) 204, (2007) 4 SC (Pt. III) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.

Having accepted the decision that the contradictions are not material, it is obviously futile to argue in this appeal that the decision of the Court of Appeal that there were no contradictions in the evidence of PW1 and PW2 is wrong. Such an argument, assuming it is valid, would have no effect on the judgment of the Court of Appeal, since the appellant has accepted its decision that the contradictions are not material.

It is trite law that it is not every contradiction in evidence that is fatal to a case and that a contradiction would be material if it is on the main issues in question before the Court or is on the evidence that establish any ingredient of the offence. A contradiction not on a main issue in question before the Court or not on the evidence that establish any ingredient of the offence is immaterial and go to no issue and cannot vitiate the decision of the trial Court. See Dibie & Ors. v. The State (2007) All FWLR (Pt. 363) 83, (2007) 3 SC (Pt. I) 176; Dagayya v. State (2006) All FWLR (Pt. 308) 1212, (2006) LPELR – 912 (SC); Akpabio v State (1994) LPELR – 369 (SC) and Ndike v. State (1994) LPELR – 1971 (SC). An appeal on the ground of contradictions in the evidence elicited by a party to a case cannot succeed merely because some contradictions are shown to exist. The appeal can only succeed if it is shown that the contradictions are material. So the appellant having as correct the concurrent finding of the Court of Appeal that the contradictions are not material by not appealing against the finding, his contention in this appeal that they are contradictions between the testimonies of PW1 and PW2 is a futile exercise.

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The prosecution elicited evidence through PW1, PW2, PW3, PW4, and PW5 and exhibit 11, the extra-judicial statement of the appellant to prove that the appellant and others conspired to murder Apostle Elijah Andrew Okeeke and did murder him in his house in the evening of 3 December 2006. PW1 and PW2 gave direct and positive evidence that they were present in the house of the deceased house when the appellant and his co-accused and others at large came there armed with machetes and a gun, inflicted matchet cuts on the deceased killing him and carried his corpse to an unknown destination.

The appellant testified for himself as DW5 to rebut the case established by the evidence of the prosecution against him and put up a defence of alibi stating that “I know Andrew Elijah Okeeke, he is from my community. I am from Baaloore Community in Khana Local Government Area. I do not know if the said Andrew Elijah Okeeke is still living and I did not conspire with the other accused persons or anyone to kill him. I did not also kill the said Elijah Andrew Okeeke. I remember 3 December 2006. I was in Bori with my family. On 3 December 2006, it was a Sunday, I was in my house at Bori with my family about 2 0’clock in the afternoon when one of my neighbor called me that his brother was badly sick and their parents are not at home; I should help him by using my car to take his brother to a clinic in Bori. The doctor asked me to deposit some money and I was not with enough money so I carried the patient back. On my way going, I stopped at pharmacy to get some drugs I could afford for the sick person. On my way going back to the house, Chief Lenee Okere called me from the village, that there was a set of boys led by Fyneboy Silas, Barisuka Andrew and others who are on amnesty today that came to the community where they are and was chasing them, that they should help by giving me some armed men that will go to the community and rescue the situation. The police officer said he could not sign for any police man, that both the DPO and DCO were not in the office to do that. I asked him what I could do to see the DCO, he now gave me one woman police to take me to the DCO’s house within the police barrack. When I got there the DCO was not in. I waited in the police station after some time the DCO came into the barrack and I met him and told him the information I got from my place. He took me to the policeman at the counter that he should detail some policemen to go with me to the village and he left. The policeman on duty at the counter asked me to explain what happened so that he could record. When I explained to him that they said one Tambari Aziaka has been caught he said he will not book any policeman to go with me until the person caught in the village comes to the station to make his statement.

The policemen who were prepared following DCO’s order refused to go with me that if the police on counter did not book them they cannot go outside the station. While I was still talking with them Chief Lenee called again that they were coming to the station with Tambari Aziaka. I waited and did not see them and I left. I got to my house and called the SSS officer in charge of Bori Division and I told him the information I got from my place. He said he would find out on Monday the following morning.

On Monday morning they called me that my father was kidnapped by the same boys. After some days my father was released.”

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His testimony in chief restates the alibi he raised in his pre-trial extra-judicial statement, Exhibit 11, which alibi the investigating police officers did not bother to investigate because the extra-judicial statements of PW1 and PW2 that they saw him among the persons that came to the deceased house after 7pm in the evening of 3 December 2006, inflicted several machete cuts on him and PW2, killed him took his corpse away. The trial Court considered his plea of alibi thusly – “The 5th accused in his statement to the police and in his evidence-in-chief stated that he was in his house in Bori on Sunday afternoon when a neighbor pleaded with him to assist and take him (the neighbor) to a nearby clinic. He took the neighbor to the clinic, thereafter he was called on telephone by the 3rd accused, that cultists were performing in their community and he quickly went to Bori Police Station to make a complaint and to take some police officers to the community but he did not succeed in making the complaint or taking any police officer to his community. From his evidence, he remained at the Bori police station till 9:00pm.

From the statement of the 5th accused to the police (exhibit 11) the only reason the 5th accused went to the police station at Bori, where he claimed he was up until 9.00pm, was because of a telephone call he received from the 3rd accused (DW3 – Chief Lenee Okere) his brother. For clarity let me reproduce the statement of the 5th accused in this regard. It reads: “I got a call from home by Chief Lenee Okere that Fineboy Sunday, Aanu Naatam… came home with guns, machete and dangerous weapons and they have cut one Tambari Aziaka and that they are looking for me the honourable to kill as councilor representing the area, I ran to Bori police station to report.”…

Meanwhile, Chief Lenee Okere, 3rd accused in his own statement to the police cataloged what happened on 3 December 2006 afternoon and how he went to the Royal Highness at Okwere, Chief Gbarakoro Nwigo of Okwere to report what had happened in their police station to make a report.

The 3rd accused never said, both in his statement to the police and before this Court, that he called his brother the councilor (5th accused) to report what had happened in their community on 3 December 2006 neither did he say that the cultists said they were looking for the 5th accused.

​Under cross-examination, the prosecuting counsel asked the 5th accused thus:

Q. You were in Court when 3rd accused gave evidence

A. Yes

Q. Will it surprise you to hear that the 3rd accused never said in his evidence that he called you and reported any incident to you?

A. I may not remember.

The question I ask is, if the 3rd accused never called the 5th accused on telephone on 3 December 2006 to report cult disturbances at Baalore to him, what took the 5th accused to Bori police station where he said he was, till 9.00pm. From the evidence of PW1 and PW2, the deceased was murdered at about 7.00pm which means that the 5th accused was allegedly at Bori Police Station when the deceased was murdered.

I must point out that the 5th accused stressed in his statement to the police (exhibit 11) that Chief Lenee Okere (3rd accused) called him on phone, he recounted how he was on telephone with Chief Lenee Okeke (3rd accused) while at Bori Police Station but only left the police station about 9.00pm after the 3rd accused called him on phone and told him he was coming to Bori Police Station with Tambari Aziaka, who was allegedly injured by the cultists, meanwhile, the 4th accused (Kingdom Okere) whom the 5th accused never mentioned in exhibit 11, said in his own statement to the police (exhibit 10) that he met the 5th accused reporting the incident to the police at Bori Police Station. For ease of reference, I have hereunder reproduced the relevant statement of the 4th accused, Kingdom Okere.

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On the 3 December 2006… I saw a group of boys by name Fineboy Silas…and others coming towards my compound. I ran to junction where I saw Tambari Aziaka cut by these same cult boys, I took motorcycle to Bori Police Station where I met my brother Goodluck Okere reporting the same matter to police.

The prosecution has through PW1 and PW2 adduced evidence of crime at the material time the 5th accused and indeed the 3rd and 4th accused said they were not in Baalore, therefore, I find that the plea of alibi by the 3rd, 4th and 5th accused persons, which is contradictory, has been logically demolished. I will not go to the next issue, which as I said earlier is the most important because it is the duty of the prosecution to prove its case against the accused person.”

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Concerning the testimonies of all the accused persons on their alibi, the trial Court found as a fact that “the testimony of the accused persons is replete with inconsistencies, contradictions and absolutely unreliable. I do not believe their testimony… all the accused persons failed to account for their whereabouts on the evening of 3 December 2006 when the deceased was murdered.

“On the contention of defense counsel that the police failed to investigate the alibi set up by the accused persons, I hold that the accused persons never properly raised the plea of alibi, stating exactly where they were. Besides, as stated earlier, the unimpeachable evidence of PW1 and PW2 linking the accused persons with the murder of the deceased logically and physically demolished their defence of alibi.”

I believe the prosecution has proved the commission of the crime beyond reasonable doubt through PW1 and PW2. Even though the said PW1 and PW2 are sister and daughter respectively, of the deceased, I hold that they can be believed despite their relationship with the deceased. See Ochemaje v. State (2008) All FWLR (Pt.435) 1661, (2008) 15 NWLR (Pt. 1109) 57.

However, in accepting the evidence of PW1 and PW2, I am mindful of their relationship with the deceased.

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The evidence of the accused persons to distance themselves from the murder of the deceased did not in any way controvert or withstand the evidence of PW1 and PW2 whom I saw and carefully watched their demeanor during the proceeding, they impressed me as sincere witness. I believe PW1 and PW2 actually saw the accused person kill the deceased. On the contrary, the accused persons did not impress me as honest persons. The impression the accused persons made of themselves is that they are not truthful witnesses. Their testimony is a bundle of lies.

From the totality of all I have said in this judgment, I hold that the prosecution has proved beyond reasonable doubt that the accused persons and others now at large on 3 December 2006 at Baalore community in Bori Local Government Area of Rivers State, conspired to kill and actually killed Apostle Elijah Okeeke Andrew by inflicting several machete cuts on him.”

The trial Court considered the totality of the evidence adduced by both sides and found that:

“I believe the prosecution has proved the commission of the crime beyond reasonable doubt through PW1 and PW2. Even though the said PW1 and PW2 are sister and daughter respectively, of the deceased, I hold that they can be believed despite their relationship with the deceased. See Ochemaje v. State (2008) All FWLR (Pt. 435) 1661, (2008) 15 NWLR (Pt. 1109) 57.

However, in accepting the evidence of PW1 and PW2, I am mindful of their relationship with the deceased.

The evidence of the accused persons to distance themselves from the murder of the deceased did not in any way controvert or withstand the evidence of PW1 and PW2 whom I saw and carefully watched their demeanor during the proceeding, they impressed me as sincere witnesses. I believe PW1 and PW2 actually saw the accused persons kill the deceased. On the contrary, the accused persons did not impress me as honest persons. The impression the accused persons made of themselves is that they are not truthful witnesses. Their testimony is a bundle of lies.

From the totality of all I have said in this judgment, I hold that the prosecution has proved beyond reasonable doubt that the accused persons and others now at large on 3 December 2006 at Baalore community in Bori Local Government Area of Rivers State, conspired to kill and actually killed Apostle Elijah Okeeke Andrew by inflicting several machete cuts on him”.

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The Court of Appeal concurred with the above findings and holding of the trial Court and held that it had no reason to doubt the said holding nor to interfere with the findings of the trial Court and that the trial Court was right in convicting the appellant based on the evidence of PW1 and PW2. There is no ground of this appeal complaining against the judgment of the Court of Appeal affirming the decision of the trial Court believing the testimonies of PW1 and PW2 and disbelieving the testimony of the appellant. By not appealing against the failure of the Court of Appeal to reverse the said decision, the appellant accepted the decision as correct, conclusive and binding upon him. Having accepted that the trial Court correctly believed the testimonies of PW1 and PW2 and correctly disbelieved the testimony of DW5, it becomes futile to argue that the evidence elicited by the prosecution did not prove the guilt of the appellant beyond reasonable doubt.

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It is glaring that the trial Court determined the case before it on the basis of its finding on the demeanor and credibility of the witnesses before it. The Court of Appeal concurred with the said finding. This Court has no power to interfere with the decision of the Court of Appeal concurring with the finding of the trial Court that listened to the witnesses testify, observed their demeanor and considered the totality of the circumstances of the case in believing or disbelieving the witnesses, except where the belief or disbelief is unreasonable and perverse as it is contrary to evidence before the Court. Fashanu v. Adekoya (1974) 1 All NLR (Pt. I) 35 and Ukaegbu & Ors. v. Nwololo (2009) LPELR – 3337 (SC).

The appellant in this case did not even contend that the belief of PW1 and PW2 and the disbelief of his testimony is contrary to the evidence.

In the light of the foregoing, I resolve issues 1, 2 and 3 in favour of the respondent.

On the whole this appeal fails as it lacks merit. It is hereby dismissed.

SC.839/2018