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:
- Whether the Court of Appeal was correct when their lordships held in their judgment that the Appellant’s alibi is a mere fallacy?
- Whether P.W.1 and P.W.2, the alleged eye witnesses gave convincing and credible evidence to predicate the conviction of the Appellant?
- 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:
- 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?
- 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… ”
It must be noted that by the circumstances of the murder case, the Appellant made the statement 6 weeks after the gruesome incident. From the available record, the information against the Appellant was filed on 8/5/2007 and the trial began. The Appellant entered his defence on 17/7/2012. See page 149 of the record. His evidence in chief is strikingly similar with his confession made on 17/1/2007 at the Bori Police station. In both, he alleged that he was in the house of Mr. Nicholas Emmanuel on 3/12/2006, where he was invited for an occasion. “I saw a group of people that came with locally made pistol. They even pointed a gun at me. These people are Fineboy Silas, Barisuka Kekee, Nwiinuke Anthony and Friday Sunday. Dr. Kinale, the youth leader of Ka-Loore sent them away and escorted me to the junction where they said they caught one Tambari Aziaka. From there, I took off to Okwere in Khana Local Government to report to the Highness, Chief Nwiige Gbarakro and he said I should go to Bori and report to the police since they have caught somebody.”
The Appellant mentioned the names above at the tip of his finger and confirmed under cross examination at page 151 that he knew 8 among the people that came to attack him with a locally made pistol on the 3/12/2007 in the house of Nicholas Emmanuel. These facts and names were all given by the Appellant possibly in prove of his alibi that he was not at the scene of the crime on 3/12/2006 when the deceased was murdered in his house in the presence of his sister and daughter.
As logical and forceful as this defence appears, throughout the defence of the Appellant, he never called any of these persons to prove, corroborate and strengthen his alibi. The Appellant was his lone witness and closed his case without calling a single other witness to solidify his alibi.
Although, the word alibi needs not to be mentioned or known by a criminal, the circumstances, the defence and particulars are facts that must naturally and incidentally crop up as a defence to anyone who in truth and deed was not at the scene of any crime or cannot be connected to it because he was elsewhere when the crime took place. This of course, necessitated the principle and precedent of alibi.
It is evident and apparent that the Appellant attempted to inform the Bori police station that he was in the house of one Nicholas Emmanuel for a ceremony when the murder of the deceased took place on 3/12/2006. However, he failed to call the said Nicholas Emmanuel, the Chief, or his assailants to testify in his support. The import of Section 167(d) of the Evidence Act, 2011 (as amended) is that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. See Per RHODES-VIVOUR, J.S.C in SIMON V. STATE (2017) LPELR-41988(SC) (P.11, PARAS. E-F). The presumption created is against the withholding of documentary and oral evidence. The presumption applies generally to failure to lead evidence on pleaded facts, and not failure to call a particular witness. See BABUGA V. STATE (1996) 7 NWLR (PT.460) P.279.
Furthermore, he failed or deliberately refused to explain in details the time he spent on 3/12/2006 at the Bori Police station. Moreso, the same Bori police station too would have been called to corroborate and affirm that the Appellant was with them that fateful day, making it impossible to have been at the scene of the crime. Would it have been possible for the Appellant to have spent the whole day at the Bori Police station? These are sifting and distinguishing details the Appellant ought to have supplied and revealed to avail him the defence of alibi.
For the defence of alibi to be worthy of investigation, it must be precise and specific in terms of the place that the Accused was and the person or persons he was with and possibly what he was doing there at the material time. See SHEHU V. STATE (2010) 8 NWLR (PT. 1195) 112, OCHEMAJE V. STATE (2008) 15 NWLR (PT. 1109) 57.
Again, PW1 and PW2 gave eyewitness, direct, undistracted and cogent evidence fixing the Appellant to the scene of the murder of the deceased on 3/12/2006 in their testimonies contained at pages 91-100 and 101-105 of the record respectively. PW1 and PW2 testified unequivocally and unmistakably of knowing the Appellant as one from their community. See pages 91 and 101 respectively. In fact, specifically at page 91, PW1 clearly narrated that “I knew the accused persons before the incident of 3-12-2006’. It means therefore, that it could only be his ghost that was at the house of Nicholas Emmanuel that fateful day or it was his ghost that PW1 and PW2 saw, but the latter would not have been the case since their evidence was not spiritual but physical of what they saw, heard and perceived from the murder of the deceased.
It is the law that where the presence of an accused is fixed at the scene of the crime, the defence of alibi, no matter how beautifully put up is defeated and needs no investigation. See NJOVENS V. THE STATE (1973) NSCC 257 AT PAGE 278, OMOTOLA & ANOR V. THE STATE (2009) 8 ACLR 29 AT PAGE 144, Per MUHAMMAD, JSC in AYAN V. STATE (2013) LPELR-20932(SC) (P. 16, PARAS. C-D).
Connected and germane to the above is the testimony of PW6, Sgt, Esseh Ekoi, who was part of the investigation. Under cross examination, he exposed at page 130 of the record that “we came by the conclusion that the 3rd, 4th and 5th accused were involved in the murder because of the statement given by PW1 and PW2 (Joy and Hannah). Besides, the 3 accused persons I mentioned were being looked for by the police at State CID Port Harcourt and they (3 accused persons) ran to zone 6 Calabar.” The trial Court at page 254 having seen and watched the demeanour of the Appellant was convinced that “the prosecution 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 Baaloore; therefore, I find that the plea of alibi by the 3rd, 4th and 5th accused persons, which is contradictory, has been logically demolished.” On this respect, Per MUSDAPHER, JSC in ATTAH V. STATE (2010) LPELR-597(SC) (P. 25, PARAS. B-D), explained it thus:
…the trial Judge has duty, even in the absence of the investigation of an alibi raised by an accused, to consider the credibility of the evidence adduced vis a vis the alibi… It is the law where an alibi is properly raised, the prosecution must investigate it, however, it is also the law where there is visual and positive identification, of the accused at the scene of the crime which is believed by the trial Judge, the appellate Court should not disturb such a finding.
Although, the Appellant has accused the Police of not investigating his puerile and vague alibi, it is settled law that where an accused raised a defence that his alibi was not investigated, he can still be convicted if there is stronger and credible evidence before the Court which falsified the alibi. See Per ONU, JSC in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR-270(SC) (PP. 20-21, PARAS. G-C).
This is the unfortunate case of the Appellant. This issue is hereby resolved against him.
ISSUE TWO:
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?
The Appellant’s learned Counsel’s submission hereunder is that by the evidence of PW1 and PW2, the Appellant’s native name “Lenee Okere” was not mentioned. Further, that while PW2 gave the time of the murder to be about past 7:00pm, PW1 gave the time about 12:00 noon; which are material contradictions that remained unexplained. Again, that while PW1 stated that it was Kingdom Okere that carried a gun; PW2 revealed that it was Ledor Chukwu that carried a gun.
Similarly, it was argued by the learned Counsel to the Appellant that the revelation by the 4th accused person Kingdom Okere, that the deceased was killed by a rival cult group, which his son belonged, ought to have been investigated but was not. He concluded that there was no evidence substantial to establish the guilt of the Appellant beyond reasonable doubt. He urged that this issue be resolved in favour of the Appellant and the appeal allowed.
The Respondent’s learned Counsel submitted that contrary to the Appellant’s view that the PW1 and PW2 did not establish the motive of the Appellant in killing the deceased, he argued that motive has never been material in a criminal trial. He cited in support BABATUNDE V. STATE (2014) 2 NWLR (PT.1391) AT 331. That there is also no law that prohibits blood relations from testifying for the prosecution as decided in ALI V. STATE (2015) 10 NWLR (PT. 1466) 36.
He submitted further that the testimonies of PW1 and PW2 are not riddled with contradictions. However, that there can be minor discrepancies in the evidence of PW1 and PW2, which did not in any way affect their credibility. On what amounts to a material contradiction to vitiate a conviction, he cited ARCHIBONG V. STATE (2006) 14 NWLR (PT. 1000) 349. There is no doubt that PW1 identified the Appellant as the 3rd accused person at the trial and referred to him as “Akponta” also known as Lenee Okere.
On the time which the deceased was killed, it was submitted that there was no time. PW1 mentioned the time the deceased was killed. Thus, discrepancies in the testimonies of prosecution witnesses will not cast doubts in the mind of the Court unless they are material and substantial as held in EZEUKO V. STATE (2016) 6 NWLR (PT. 1509) AT 585.
On who among the accused persons had a gun is not material since where 2 witnesses give evidence on what they saw in a particular day, there are bound to be discrepancies. The material questions to ask however are; when was the deceased killed, how was he killed and who killed him?
Further, that it is unsupported by Exhibits 9 and 10 that it was a rival group that killed the deceased since all that Kingdom Okere narrated was hearsay, based on what he was informed by another unnamed person. He concluded that this issue be resolved against the Appellant and that since the Appellant’s appeal is predicated on the concurrent findings of the two Courts below, he prayed for the dismissal of the appeal.
The Appellant’s learned Counsel identified the contradictions in the evidence of PW1 and PW2 capable of creating reasonable doubt in the mind of the Court to discharge and acquit the Appellant. He stated that PW1 and PW2 substantially contradicted their evidence to the effect that the Appellant’s native name “Lenee Okere” was not mentioned; that the time of the murder was differently fixed to be about past 7:00pm and about 12:00 noon; that while PW1 stated that it was Kingdom Okere that carried a gun; PW2 revealed that it was Ledor Chukwu that carried a gun.
At page 3 of the record, the Appellant with others was charged amongst other things with murder contrary to Section 319(1) of the Criminal Code, Cap.37. Laws of Rivers State, 1999.
On the offence of murder, which the Appellant is charged with, the prosecution could use any of the under mentioned methods to prove murder: (a) Through evidence of eye witness or witnesses (b) Through voluntary confessional statement of the accused or accused persons, and (c) Through circumstantial evidence. See AGBOOLA V THE STATE (2013) LPELR 20652 (SC). Any of the above mentioned methods could be adopted by the prosecution to establish the offence of murder by proving the under listed ingredients of the offence of murder, namely:- (1) The death of a human being (2) That the death was caused by the act commission of the accused person/and (3) That the act of the accused was done intentionally or with knowledge that death or grievous bodily harm was the probable consequence. See OKEKE V THE STATE (1999) 2 NWLR (PT 590) 246 AT 273, Per SANUSI, JSC in AKINSUWA V. STATE (2019) LPELR-47621(SC) (PP. 23-25, PARA. E).
In the instant appeal, eye witness account and circumstantial evidence took the lead. PW4, Dr Charles Ngozi Amachree, expertly testified at pages 113-114 that he identified the decomposed corpse of the deceased with lot of injuries of multiple matchet cuts on the crown of the head, across the neck, extending from the chest to the abdomen, two cuts on both groins, left hand was almost cut off, a deep cut on the right knee, and abdominal cut that you could see inside the intestine. He concluded that the cause of death would have been from excessive blood loss arising from the injuries he had. The coroners Form D, the pictures and negatives were admitted in evidence as Exhibits 1-4 respectively. Thus, combining this with other evidence given by PW1, PW2 and others, it means that “the death of a human being” or the deceased has been proved.
As to whether the “the death was caused by the act or commission of the accused person”, PW1 and PW2 gave eyewitness and direct evidence fixing the Appellant to the scene of the murder of the deceased on 3/12/2006 in their respective testimonies contained at pages 91-100 and 101-105 of the record. They narrated and revealed how the Appellant in the company of others came to the residence of the deceased in a white bus and murdered the deceased by matchet cuts. PW1 categorically said that “on that day there was generator light that was why I was able to notice the accused persons.” See page 91 lines 29-30. She further revealed at page 92 lines 2-3 that the “the accused persons… used matchet in killing my late brother.” Having dislodged the alibi of the Appellant, it has therefore been proved that the death of the deceased was caused by the act or commission of the Appellant.
Finally, that the act of the accused was done intentionally or with knowledge that death or grievous bodily harm was the probable consequence is the natural and probable consequence from the matchet cuts inflicted on the deceased as explained by PW4. Thus, the 3 ingredients of murder have been proved beyond reasonable doubt to warrant the conviction of the Appellant.
Any material or substantial contradictions in the evidence of PW1 and PW2 or any other evidence will therefore favour the Appellant but this is not the case herein. Thus, from the circumstances of this case and in the light of these pieces of evidence adduced by the Respondent, there is no doubt that all the ingredients of the offence of murder have also been duly proved beyond reasonable doubt, as there was no evidence controverting or contradicting them.
It is well established that contradictions which do not affect the substance of the issue to be decided are irrelevant. The contradictions must shown to amount to a substantial disparagement of the witness or witnesses concerned, making it unsafe to rely on such witness or witnesses. See UWAIFO, J.S.C. in ISIBOR V. STATE (2002) LPELR-1553(SC) (PP. PARAS. F-A). It is not every contradiction, however minute, that would be sufficient to damnify a witness. The contradiction that would make a Court disbelieve a witness has to be on a material point in the case. The so-called contradictions the Appellant’s learned Counsel is alleging are but discrepancies in the accounts and testimonies of PW1 and PW2 that cannot go to the root of disbelieving that there was murder of the deceased by the Appellant and his team. See also Per MOHAMMED, JSC in STATE V. DANJUMA (1997) LPELR-3216(SC) (P. 10, PARAS. C-F).
The trial, lower Courts and this Honourable Court adverted their minds that there are no material contradictions in the evidence of the Respondent capable of reversing the fate of the Appellant. This issue is resolved against the Appellant. The whole appeal therefore fails and the concurrent findings of the two Courts below remain undisturbed. The appeal is dismissed. The appeal is accordingly dismissed and the judgment of the lower Court is affirmed.
SC.925/2018
