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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