Leading litigator, Chief Jibrin Okutepa SAN has urged the Supreme Court to affirm the decision of the Court of Appeal which discharged and acquitted cancer care specialist and founder of Optimal Cancer Care Foundation, Dr. Olufemi Olaleye of all charges in a defilement and sexual assault case brought by Lagos State.
In a four-page Notice of Preliminary Objection as well as a 31-page Respondent’s Brief of Argument filed by the fiery litigator on behalf of Olaleye, he argued that the evidence of the Appellant (Lagos State) was “not sufficient” to convict Olaleye (Respondent) for the offences.
The senior lawyer contended that Olaleye’s estranged wife - who was also the first Prosecution Witness - “was held by the Court below to be a tainted witness,” adding that the evidence of the alleged victim “was full of material contradiction.” While the evidence of PW3-PW6 “was held to amount to hearsay evidence,” he stated that the trial Court “wrongly admitted Exhibits H, H1 and H2, when it failed to conduct a trial within trial and the Court below rightly expunged them.”
Still impugning the judgment of the trial court which sentenced the embattled cancer care specialist to life imprisonment on each of the two counts of defilement and sexual assault, Okutepa argued that “The Appellant failed to call two vital witnesses in the course of their case. DPO Patricia Amadi and Aunty Tessy. The Appellant did not establish the age of PW2 (the alleged victim) or prove same beyond reasonable doubt. The Appellant equally failed to tender the birth Certificate of PW2.”
A former Nigerian Bar Association (NBA) prosecutor at the Legal Practitioners Disciplinary Committee (LPDC), Okutepa, who is leading 12 other lawyers in the appeal, also contended that assuming without conceding that the alleged victim was a child, “her evidence was not corroborated.”
Arguing the Respondent’s Preliminary Objection to the appeal, the senior counsel outlined eight grounds on which the appeal should be dismissed by the apex court.
He contended that the notice and grounds of appeal filed by the Appellant “are based on grounds of facts and or grounds of mixed law and fact and this Hon. Court by virtue of section 233(1) of the 1999 constitution as altered by the 2nd Alterations Act, 2010 has no jurisdiction to hear, determine, and or entertain appeals based on grounds of facts or on grounds of mixed laws and facts.”
According to Okutepa, even if the Supreme Court has jurisdiction to hear and determine appeals on grounds of facts or mixed law and facts, “this appeal filed by the appellant is incompetent and this Hon. Court lacked the jurisdiction to hear and determine the appeal in that the Appellant herein failed, refused and/or neglected to seek and obtain the leave of the court below or the leave of this Hon. Court before filing the Appeal.”
He again vowed that the appeal “is not supported by competent and valid record of appeal in that the purported record of appeal transmitted to this Hon. Court on the 1st day of July 2025 was not compiled and transmitted in accordance with the Rules of this Hon. Court and the Supreme Court (Criminal Appeals) Practice Directions, 2013.”
Reeling out other grounds to impeach the appeal, Okutepa stated that “There is no competent brief of argument filed by the Appellant as the Appellants purported brief of argument was not filed in accordance with due process as required by the Rules of this Hon. Court and the Practice Directions issued under the hands of the Hon the Chief Justice of Nigeria.
“This appeal is academic in that the findings and conclusions of the court below against the Appellant to the effect that the evidence of PW1, PW2, PW3, PW4, PW5 and PW6, were hearsay, contradictory, worthless, inconsistent and unreliable, were not challenged or appealed against in any of the grounds of appeal and are therefore subsisting and binding on the Appellant who did not challenge these findings and conclusions.
“Appellant did not appeal against the crucial findings of the Court below that set aside the judgment of the trial Court and discharged and acquitted the Respondent as contained on P.1059, Vol.3 of the record, and no utilitarian value can be conferred on the Appellant by the success of this appeal.
“The Appellant did not appeal against the decision of the Court below which held that PW2 was not a child and that she was not defiled, despite the fact that defilement was the foundation upon which the Respondent was charged before the trial Court as can be seen at PP.4-5, Vol.1 of the record, therefore, this Hon. Court cannot assume jurisdiction to hear and determine this appeal that did not challenge the decision of the Court below on live issues in controversy between the parties.
“This Hon. Court cannot set aside the decision of the court below which has not been appealed against.”
Referring the apex court to the “impeccable decision/findings” of the Appeal Court which discharged and acquitted the Respondent, Okutepa argued that the appellate court “held that the evidence of PW1, PW4, PW5 and PW6, (that) the PW2 was a child, constitute hearsay evidence which is not admissible in law. Furthermore, the Court held that, the failure of the Appellant to tender or give any credible evidence on the birth certificate or registration of PW2’s birth created credible and reasonable doubt in the Appellant’s case. The Appellant failed to appeal this findings/decision of the Court below.”
The senior lawyer drew the court’s attention to the judgement of the Appeal Court which held that the Respondent’s estranged wife (PW1) “showed that she was motivated by greed and her personal desire to acquire and take over Appellant’s asset while in custody. She is therefore a tainted witness in every sense,” adding that the Appellant “did not appeal against this findings/decision of the Court below which automatically makes this Appeal academic.”
He argued that there were material inconsistencies between the oral testimony of the alleged victim (PW2) and the Medical Report, restating the views of the appellate judge that “I am of the view that the trial Court was wrong to have relied on the testimony of the PW2 in convicting the Appellant.”
Noting that the Appeal Court had berated the prosecution by holding that “This is the type of situation that occurs when instead of prosecuting an accused person, you are persecuting him,” Okutepa again signposted the appellate court’s position that “The testimony of PW5 has been impeached and her testimony is worthless.” Dwelling on the point, he quoted the appellate court’s position that “As could be seen, just like the other witnesses for the Prosecution, the PW6’s evidence was not sufficient to convict the Appellant for the offence for which he was charged.”
He then argued that “In summary, it is our submission that in absence of the evidence of PW1, PW2, PW3, PW4, PW5 and PW6, there is no evidence in support of the Charge to ground conviction. Therefore, the appeal is academic and we urge this Hon. Court to dismiss the appeal in the interest of justice.”
Okutepa noted that the Respondent vowed to the trial court that the alleged confessional statements were made under duress, adding that the trial court failed to conduct a trial-within-trial to test the veracity of his assertion.
Concluding, Okutepa argued that “the Court below was right in setting aside the decision of the trial court and discharging and acquitting the defendant for lack of relevant, cogent, credible and reliable evidence by the prosecution. In the circumstances, we urge this Hon. Court to dismiss this appeal with cost and to affirm the judgment of the Court below in the interest of justice.”
CITY LAWYER recalls that though the Lagos State High Court had found the Respondent guilty of defilement and sexual assault, the Court of Appeal had upturned the verdict while discharging and acquitting the Respondent. Dissatisfied with the verdict of the appellate court, Lagos State had last December headed to the Supreme Court in an attempt to reverse the verdict.
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