Felix Okpako V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A., (Delivering the Leading Judgment)

This is an appeal from the judgment of the High Court of Delta State sitting in Isiokolo, delivered on 19th December, 2005. In the judgment, the Appellant was convicted for the offence of murder and sentenced to death by hanging. The judgment is at pages 43 to 52 of the record of appeal. Dissatisfied with the judgment, the Appellant appealed against it to this Court. The Notice and grounds of appeal is at pages 53 to 54 of the record.

The brief background facts of this matter as stated in the Respondent’s brief of argument are that, on the night of 11th October, 2002, the Appellant stabbed his half-sister, Eloho Okpako on the neck with a kitchen knife. The injuries sustained by her later led to her death. The Appellant bolted away after the incident but the Police after three days of searching apprehended and charged him to court. The Appellant was subsequently arraigned on a one count charge as follows:

STATEMENT OF OFFENCE

Murder, punishable under Section 319(1) of the Criminal Code, Cap. 48, Vol. II, Laws of Bendel State, 1976, as applicable in Delta State.

PARTICULARS OF OFFENCE

Felix Okpako (m) on the 11th day of October, 2002 at Orior Town within Isiokolo Judicial Division murdered one Eloho Okpako (f).

In proof of the Respondent’s case against the Appellant, the Respondent called four witnesses and tendered some exhibits in evidence. The Appellant gave evidence in his defence but called no witnesses. The Appellant denied the allegation that he stabbed the deceased with a knife. At the conclusion of trial, the learned trial Judge held that the prosecution had proved the charge of murder against the Appellant beyond reasonable doubt and consequently convicted and sentenced him to death.

In the Appellant’s brief of argument dated and filed on 4th June, 2008, the learned counsel for the Appellant, Mr. Ojo Abijogun of the law office of Ojo M. Abijogun & Co., formulated for the determination of this appeal, two issues from the two grounds of the original notice and grounds of appeal and four grounds of the Additional grounds of appeal, leave to file the latter having been sought on behalf of the Appellant and granted by this Court. The said two issues read thus:

1. Whether the learned trial Judge was correct to have in the circumstances of this case, convicted the Appellant for the offence of murder relying heavily on a confessional statement that was highly discredited, and that was very suspicious?
2. Whether the trial Judge was correct to have convicted the Appellant for the offence of murder when it was not conclusively proved that the Appellant caused the stab wound injury which led to the death of Eloho Okpako?

On the other side, the Respondent’s learned counsel, Chief V.E Otomiewo, Hon, Attorney-General & Commissioner for Justice of Delta State (as he then was) in the Respondent’s brief of argument dated 9th April, 2010, which was deemed properly filed and served on the same date, also formulated two issues for the determination of the Appeal. The two issues are that:

(i) Whether the learned trial Judge was right to have relied on exhibit D, the free, voluntary and direct extra judicial confessional statement of the Appellant in convicting him?

(ii) Whether having regard to the state of evidence before the trial Court, the learned trial Judge was not right in holding that the prosecution did prove the case of murder against the Appellant beyond reasonable doubt?

By reason of the nearly identical issues formulated by the learned counsel for both parties, I will adopt the two issues formulated by the Appellant’s counsel and I believe that these are sufficient for the resolution of this appeal. I will now consider the issues seriatim.

ISSUE ONE