Felix Okpako V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The accused/appellant was arraigned before the High Court of Justice Delta State, lsiokolo Judicial Division on a 1 count charge of murder punishable under Section 319(1) of the Criminal Code Cap. 48 Volume II, Laws of the defunct Bendel State 1976 as applicable to Delta State in Charge No. HCI/11C/2004. The Charge read as follows:-

“STATEMENT OF OFFENCE”

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

PARTICULARS OF OFFENCE

Felix Okpako (m) on the 11 day of October, 2002 at Oviore town within lsiokolo Judicial Division murdered one Eloho Okpako (f).

He entered a plea of not guilty to the charge and the prosecution called four witnesses to prove the case. In the course of his evidence pw4 sought to tender a statement which the accused was alleged to have made on 17 October, 2002 but the defence objected to its admissibility on the ground that it was made under duress and torture. The learned trial Judge ordered for trial within trial to be conducted and thereafter

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overruled the objection and admitted the statement as exhibit “D”. An earlier statement made by the accused/appellant on 13 October, 2002 was tendered without objection by PW1 and was admitted as Exhibit “A”.

The accused/appellant testified but called no other evidence in his defence. In his evidence he said he was at home at Oviorie – Ovu on 11 October, 2002 and at about 6 p.m. he and the deceased quarreled and he gave her a punch as a result of which she fell down on the ground. On seeing this he took to his heels and went to his sister’s place in Warri. Three days later he learnt that the deceased had died. He said he did not expect she would die from the beating. He denied knowledge of the deceased sustaining a knife wound which led to her death. He also denied stabbing the deceased. He said he did not know who killed the deceased.

The learned trial Judge reviewed the evidence after learned counsel had presented their address. He found that it was the accused/appellant who inflicted the deceased with stab wound on the neck from which she bled to death. He arrived at this conclusion from Exhibit “D” the statement of the accused/appellant. He

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disbelieved the evidence of the appellant in Court and held that it was an afterthought. He concluded that the accused/appellant intentionally killed the deceased. He thereby convicted the accused of the offence of murder and sentenced him to death based on circumstantial evidence.

The accused/appellant was dissatisfied and appealed against his conviction and sentence to the Court of Appeal, Benin Division. The appeal was dismissed and his conviction was affirmed by the lower Court. The appellant was not satisfied with the decision of the Court of Appeal, Benin and appealed further to this Court in his Notice of Appeal dated 2 August, 2012 containing three grounds of appeal from which Mr. Asala, learned counsel representing him distilled the following issue for determination:-